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Banshilal Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 249 of 1973
Judge
Reported in1978WLN(UC)12
AppellantBanshilal
RespondentThe State of Rajasthan
DispositionPetition dismissed
Cases Referred and Dr. C.L. Pathak v. State of Rajasthan
Excerpt:
rajasthan service rules - rule 244--compulsory retirement on completion of qualifying service of 25 years--appointing authority examining entire service record after receiving recommendation of screening committee--held, appointing authority did not abdicate its independent function.;the appointing authority did not simply act upon the recommendations of the screening committee but it itself examined the record of the case and after going through the whole record recorded an order. in the order of compulsory retirement it has been clearly stated by the appointing authority that it had gone through the annual confidential reports of the petitioner and after perusing the same had reached the conclusion that it will be in the public interest to compulsorily retire the petitioner. it will,..........was compulsorily retired on 11-12-72 vide ex. 1 on receiving the not fee of the order of compulsory retirement the petitioner served a notice of demand of justice but did not receive any reply to the notice. he, therefore has moved this court under article 226 of the constitution of india prating for a writ or direction for quashing the order of compulsory retirement (ex. 1).2. the case of the petitioner succinctly put is that the petitioner's efficiency-bar grade was closed but later on by order ex. 2 the petitioner was permitted to cross the efficiency bar from 1-4-68 by order dated 9-10-1971. according to the petitioner this fact is an ample proof that the petitioner's services were recognized by the nor-petitioner no. 2 who is his appointing authority. it has been further.....
Judgment:

M.L. Joshi, J.

1. The petitioner was appointed as LDC on 16th of February, 1945, in the erstwhile State of Mewar. On the integration of the State into the United State of Rajasthan his services were transferred to the State of Rajasthan. It is net in dispute that the petitioner completed 25 years Qualifying service on 9-2-70. The petitioner was compulsorily retired on 11-12-72 vide Ex. 1 On receiving the not fee of the order of compulsory retirement the petitioner served a notice of demand of justice but did not receive any reply to the notice. He, therefore has moved this Court under Article 226 of the Constitution of India prating for a writ or direction for quashing the order of compulsory retirement (Ex. 1).

2. The case of the petitioner succinctly put is that the petitioner's efficiency-bar grade was closed but later on by order Ex. 2 the petitioner was permitted to cross the efficiency bar from 1-4-68 by order dated 9-10-1971. According to the petitioner this fact is an ample proof that the petitioner's services were recognized by the nor-petitioner No. 2 who is his appointing authority. It has been further averred that from November 1971 the petitioner has been serving under the Sub-Divisional Officer Shahpura who has given a certificate to the effect that the petitioner's work under him bad been satisfactory and there was no complaint of any kind against him so far his work was concerned. On the basis of the above averments the petitioner has contended in his petition that there was no valid justification for compulsorily retiring him as it could not be said that his efficiency was in any way impaired The petitioner further challenge the order of compulsory retirement on the ground that the appointing authority had not independently applied its mind before faking the decision for compulsorily retiring him in as much as under the circular the appointing authority's discretion was fettered in view of the fact that under the circular it was incumbent upon the appointing authority to act upon the recommendations of the screening committee.

3. The State has opposed the petition and has justified the order of compulsory retirement of the petitioner. In reply it has been alleged that there are large number of adverse entries against the petitioner beginning from the year 1963-64 to 1971-72 excepting for the one year namely the year 1970-71. The decision of compulsorily retiring the petitioner has been taken by the appointing authority, namely, the Collector after examining the service record of the petitioner, having been fully satisfied that the petitioner was not fit to be retained in service. The State has controverted the claim of the petitioner based on the ground of crossing of the efficiency bar and having earned a certificate firm the S.D.O. in the year 1971. It has been averred by the State that mere permitting to cross the efficiency-bar by itself his no meaning and is inconsequential as the decision of compulsorily retiring the petitioner has been taken after scrutinizing his service record for all the period of his service. The State has further stated in its reply that the alleged certificate of the S.D.O. is not on the service record of the petitioner and that certificate has no value so far as the question of taking decision in regard to his compulsory retirement is concerned.

4. It has been firstly contended by Shri Vishwanath the learned Counsel for the petitioner that the appointing authority did not apply its mind independently and its discretion was fettered by the recommendation of the screening committee. Reliance in this connection has been placed on the appointment circular No. F. 24(55) Appointment/(A)/57/Pt. I.C.R./CB dated 26th of April 1972, which lays down procedure for the compulsory retirement of the ministerial staff. The circular prescribes the procedure to be adopted for arriving at decision for compulsorily retiring a ministerial servant. For that purpose, it has been laid down that there shall be a Committee which will scrutinize the cases of the ministerial stall and thereafter the committee shall recommend the cases for compulsory retirement. It has been further laid down in the circular that on receipt of the recommendations of the committee, retirement order shall be issued immediately by the concerned appointing authority as per specimen enclosed. The specimen appended to the circular says that where the State Government is satisfied that it is in the public interest to dispense with the services of the said Government servant a notice shall be given to the concerned ministerial employee requiring him to retire with effect from the date of the expiry of three calendar months' from the service of the notice on him. It has been submitted by the learned Counsel that from the circular it will appear that the authorities' discretion it tied to the recommendations of the screening committee and it has no power to arrive at independent judgment and so the order of compulsory retirement of the petitioner is bad in law. Support is sought to be taken in this behalf from the case Sitaram Joshi v. State of Rajasthan 1970 R.L.W. 256. That eve is wholly distinguishable. In this case the screening committee in fact had taken the decision of the compulsorily retiring the ministerial employee and not the appointing authority. In that case three persons constituted the screening committee, one Secretary to Government, and two Dy. Secretaries in the Appointments Department. The Secretary to the Government was the Convener of the committee. The notices recorded on the Secretary's files were brought on the record. Paras No. 35 and 36 of the Secretary's notes brought on the record read as follows:

Para 35 Placed below are the proceedings of the committee for considering the cases of retirement on completion of 25 years of service in the ministerial staff of the Secretariat. The committee has recommended that the following be retired from the service on the completion of 25 years of service;

1. Sitaram Joshi, Steno.

2. Shri Mohammed Shafi Khan U.D.G.

Para 36 : Retirement orders in respect of these two persons may please be issued in accordance with the Government order.

The learned Judge from the above notes came to the conclusion that committee recommended the compulsory retirement of the petitioner and the Special Secretary (Appointment) noted in para 36 that retirement order in respect of two persons one being the petitioner be issued in accordance with the order dated 13-1-1964. It was on this basis that the learned Judge came to the conclusion that the order of compulsory retirement was misleading as the real author of the decision was the screening committee and that the appointing authority had not come to an independent conclusion after scrutinising the recommendations of the screening committee. This is not the case here. In the present case the appointing authority did not simply act upon the recommendations of the screening committee but it itself examined the record of the case and after going through the whole record, recorded an order. In the order of compulsory retirement it has been clearly stated by the appointing authority that, it had gone through the annual confidential reports of the petitioner and after perusing the same had reached the conclusion that it will be in the public interest to compulsorily retire the petitioner. It will, therefore not be correct to say that the appointing authority did not exercise its independent judgment and abdicated its functions.

5. Next it was contended that on the receipt of the recommendations of the screening committee, the appointing authority shall issue immediately orders of compulsory retirement and thus the discretion of the appointing authority was thus totally fettered and there was no room left in the screening committee to exercise its judgment in independent manner. I regret, I am unable to concede to this contention. The committee was only to recommend and the circular no where lays down that the appointing authority shall pass orders in terms of the recommendations. Mere fact that the appointing authority shall pass the orders immediately does not imply that it was not open to the appointing authority to exercise its independent judgment & come to a decision of its own. In the present case as already stated the authority has taken decision of its own and, therefore, the order of compulsory retirement cannot be impugned on the ground that the appointing authority did not exercise its independent judgment.

6. It was next contended that there were no valid ground for compulsorily retiring the petitioner. It was urged by the learned Counsel that the petitioner was allowed to cross the efficiency-bar by order dated 9th of June 1971 and further that he was given a certificate by the Sub-Divisional Officer Shahpura wherein the Sub-Divisional Officer had certified that the petitioner's work was satisfactory during the period of one year during which he worked under him. On this basis it has been urged that the petitioner's efficiency was not impaired and his work was satisfactory. I am unable to accede to these contentions either. In the first place the certificate does not find place in the petitioner's service-book. Moreover, it carries no weight under the service rules.

7. The contention that the petitioner was allowed to cross the efficiency-bar also does not deserve any merit. While assessing the efficiency of the petitioner for the purposes of taking decision relating to compulsory retirement the record of his service for the entire period of 25 years is to be taken into account and mere stray or isolated entry in favour of the petitioner for one year will not dislodge the inference that the petitioner's efficiency was not impaired. One has to look into the over all picture of the entire period of service career of the petitioner and after taken into consideration the totality of the record the conclusion regarding the efficiency of the petitioner his to be arrived at In the present case as stated earlier a large number of adverse entries find place in his service book beginning from the year 1963 over specially from the years 1963-64 to 1971-72 excepting for the one year namely the year 1970-71. The appointing authority had arrived at the conclusion after going through the relevant annual confidential report Rules and this Court will not sit as a court of appeal to re assess the efficiency of the petitioner afresh in a writ of certiorari. In this conclusion of mine I am fortified by the authorities Premchand Shangi v. State of Rajasthan 1975 Weekly Law Notes 891 and Dr. C.L. Pathak v. State of Rajasthan 1916 R.L.W 38. The learned Counsel however urged that in the year 1971 the petitioner having been allowed to cross the efficiency bar the previous adverse entries stood wiped out In this conclusion he relied upon State of Punjab v. Dewan Chunilal 1970 S.L R. 375 and J.R. Jain v. Union of India 1973 (2) S.L.R. 309. The case State of Punjab v. Dewan Chunilal 1970 S.L R. 375 is distinguishable as pointed out by Hon'ble Gupta, J., in Premchand Sanghi's case 1975 Weekly Law Notes 891. That case related to the promotion of Government employee. The principle to be employed in case of promotion is to be distinguished from the one applicable to the case of compulsory retirement. In case of compulsory retirement the entire service record of the petitioner has to be taken into account and, therefore, it will be really unrealistic to hold that for the purposes of compulsory retirement also that the subsequent order of allowing the crossing of the efficiency bar will wipe out the previous adverse entries. J.R. Jain's case 1973 (2) SLR 309 although supports the case of the petitioner but it is based on State of Punjab v. Dewan Chunilal's case 1970 S.L.R. 375 Therefore, this case although relating to compulsory retirement cannot be taken to be a good proposition in case of compulsory retirement. The principles bearing on the question of compulsory retirement have been elaborately discussed by Gupta, J. in Premchand Sanghi v. State of Rajasthan 1975 Weekly Law Votes 891 and Hon'ble Lodha, J. in Dr. C.L. Pathak v. State of Rajasthan 1976 R.L.W. 38 wherein various authorities have been discussed in detail and I need not refer them again here to unnecessarily encumber my judgment as I am entirely in the agreement with the reasons given in Premchand Sanghi v. State of Rajasthan 1975 Weekly Law Notes 891 and Dr. C.L. Pathak v. State of Rajasthan 1976 R.L.W. 38.

8. In view of the foregoing discussion I do not find any merit in this writ petition and dismiss the same. I, however, make no order as to costs.


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