Jitendra Prasad Chaudhary vs State of U.P.& Ors.

R.R.K. Trivedi and S.P. Srivastava, JJ.—Feeling aggrieved by the order compulsorily retiring the petitioner from service exercising the jurisdiction contemplated under the amended Fundamental Rule 56, he has approached this Court seeking redress praying for the quashing of the said order alongwith the consequential order issued by the Principal wherein communicating the order of compulsory retirement, the petitioner was required to vacate the official residence provided to him.

We have heard the learned Counsel as well as the learned Standing Counsel at some length and have perused the record.

Pursuant to the orders passed by this Court dated 2471992, learned Standing Counsel has produced the entire record containing the proceedings culminating in the impugned order which has also been looked into.

The facts in brief shorn of details and necessary for the disposal of this case lie in a narrow compass. The petitioner claims to have been selected for appointment on the post of Principal of Government Leather Institute, Kanpur on 15121977 by departmental selection committee and joined the said post on 831978. Later on since the post fell within the purview of the Public Service Commission, the petitioner appeared before the Public Service Commission and was selected on 231982 and his appointment on the post stood regularised. He attained the age of 50 years in January, 1988. It is claimed that his case was examined by the Screening Committee who declared the petitioner fit to continue in service. However, although a second screening is not permissible yet he was compulsorily retired exercising the jurisdiction contemplated under Fundamental Rule 56. It is claimed that the State Government had taken a policy decision as evident from the letter dated 6th February, 1989, a copy of which has been filed as Annexure16 to the writ petition that ordinarily once the screening committee had recommended that employee should be retained in service while examining the matter relating to his compulsory retirement on his attaining the age of 50 years in that event ordinarily the employee should be allowed to continue till he attained the age of superannuation. Tie petitioner has also challenged the impugned order of compulsory retirement passed against him on the ground that it was based on adverse entries claimed to have been awarded to him without deciding the representations filed against them by the petitioner and that the impugned action stood vitiated on account of malice and bias. Allegations of mala fides have been levelled against Sri G.S. Sharma, the Director of Technical Education who continued to hold this post till the year 1986 when he was replaced by Sri K.B. Shukla. The allegation of mala fides have also been levelled against Sri K.B. Shukla, Director of Technical Education. He has also alleged mala fides against Sri M.A. Quraishi, the Joint Director of Technical Education, Meerut Division and J.B. Gupta, the Director of Education.

In the counteraffidavit filed by the respondents, the allegations made by the petitioner have been denied. It has been pointed out that the letter dated 6th February, 1989 relied upon by the petitioner itself provides that in those cases where important facts came to the knowledge of the appointing authority the proceedings for compulsory retirement could be initiated exercising the jurisdiction contemplated under Fundamental Rule 56 and irrespective of the fact that on the attaining of the age of 50 years, the case has been examined by the Screening Committee, the case of the concerned employee may be put up before the experienced screening committee. It has further been pointed out that in fact on his attaining the age of 50years, the case of the petitioner was put up before the Screening Committee but the Screening Committee vide its resolution dated 15th November, 1988 had deferred the consideration of the matter relating to the petitioner indicating that his case for compulsory retirement will be considered in the next year. Later on the case of the petitioner was considered by the competent screening committee which recommended for his compulsory retirement.

Learned Standing Counsel has produced the adverse entries awarded to the petitioner for the years 198283 to 198889. So far as the assertions made by the petitioner about the pendency of his representation regarding the adverse entries communicated to him is concerned, it has been asserted that only two representations against the adverse entries for the years 198283 and 198384 had been submitted by the petitioner which were rejected as time barred. It has further been asserted that the Government Order relied upon by the petitioner was not attracted at all and the impugned order which was based on the satisfaction reached on the basis of the relevant materials on the record was not liable to be interfered with in the present proceedings. So far as the petitioner''s allegations regarding the impugned order being vitiated on account of mala fides is concerned it had been contended that this plea is liable to be ignored as the officers against whom the allegations of mala fides have been made have not been impleaded conominee in the writ petition.

While it may be difficult to obtain information and evidence regarding activities carried on with foul motives inference could however be drawn from proved facts which should be clear and unambiguous. The allegations of bias or mala fides against persons who are not parties to the writ petition as indicated nereinabove, cannot be entertained as they cannot have any opportunity to reply to the allegations of the petitioner. The burden of establishing the charge of bad faith is on him who seeks to invalidate or nullify any act or order but mala fides need not be proved by direct evidence alone. However, vague assertions of mala fide are of no consequence. It is necessary that in case the plea is raised clinching evidence has to be brought to the notice of the Court besides giving opportunity to the person concerned against whom mala fide or bias is pleaded to meet such allegations. Where such an official against whom a plea of bias or mala fide is raised has not been impleaded as a party conominee in the petition such a plea cannot be allowed to be raised. It must be remembered that possibility of suspicion of mala fide would not be a sufficient ground to justify an order nullifying an administrative action on the ground of mala fide. There must be real and substantial ground to sustain the suspicion which cannot be taken to be a substitute for proof.

In this connection the observation of the Apex Court in its decision in the case of State of Bihar v. P.P. Sharma, reported in 1992 Supp (1) SCC 222, may be usefully noticed. In the aforesaid case, it was observed "mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. The determination of a plea of mala fide involves two questions namely (i) Whether there is personal bias or an oblique motive and (ii) Whether the administrative action is contrary to the objects, requirement and conviction of a valid exercise of administrative power." The Apex Court laid considerable emphasis on the fact that an action taken must, therefore, be proved to have been made mala fide for such consideration, mere assertion of a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances in a given case.

While considering the requirement of impleading the person against whom allegations of mala fide are made or the effect of nonjoinder of such a person it was observed that "It is settled law that the person against whom mala fide or bias was imputed should be impleaded conominee as a party/respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made."

It may be noticed in the aforesaid case the persons against whom the allegations of mala fide had been made had not been impleaded as respondentconominee. On the effect of such nor rejoinder the Apex Court observed "O this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them.

The contention of the petition in regard to the question relating to mat fides has to be examined in the aforesaid background.

In the aforesaid view of the mater, when a petitioner seeks to nullify a order passed by an executive authority in the exercise of his discretionary jurisdiction, it is all the more necessary to implead the authority concerned in his person; capacity also so that he may be in a position to effectively reply to the allegation of mala fides levelled against him. The deliberate omission of the petitioner I implead the authority conominee in h personal capacity whose order is sought 1 be attacked on the ground of mala fides clearly indicates that the petitioner has n courage to confront the said authority with the allegations of mala fides made against him so as to create a situation where the correctness of the assertion may not be verified. The omission on the part of the petitioner to implead conominee the officials whose action sought to be nullified on the ground mala fide is concerned is fatal.

In the present case, the petition has not cared to implead officers again whom mala fides have been alleged a nominee. However, the allegations a vague and too remote to taken notice of as to have any effect on the impugned order passed by the Screening Committee.

The law is well settled that in ca: where the exercising of statutory power subject to the fulfilment of a condition then the recital about the said condition having been fulfilled in the order raises presumption about the fulfilment of the condition and the burden is on the person who challenges the validity of the order to show that the said conditions was not ft filled.

In a case where the order does n contain a recital about the condition being fulfilled the burden to prove that the conditions was fulfilled would be of the authority passing the order if the validity of the order is challenged on the ground that the said condition is not fulfilled. The presumption is to the regularity of the public Act and applies in such a case. In case the order is challenged and it is said that it was passed without fulfilling the condition then the burden would be on the authority to satisfy by other means in the absence of recital in the order itself that the condition precedent had been complied with.

It has been contended by the learned Counsel for the petitioner that since he had been allowed to continue up to his attaining the age of superannuation by the Screening Committee which had considered his case on his attaining the age of 50 years, it was not permissible to retire him compulsorily on the basis of another report of the Screening Committee. The contention is that once an employee is found fit by the Screening Committee to continue up to the age of superannuation this security of tenure could not be curtailed on the basis of recommendation of second Screening Committee. The reliance in support of this submission is placed on the letter dated 6th February, 1989. A perusal of the aforesaid letter, a copy of which has been brought on record does not lead to any such inference. In fact the policy decision referred to in the aforesaid letter does not indicate any such prohibition. On the contrary it permits consideration of a case of an employee for his compulsorily retirement even by a second Screening Committee where important facts come to the knowledge of the appointing authority which may justify cessation from service in public interest.

In the present case what is apparent from the record is that for the first time the petitioner''s case came up for consideration by the Screening Committee in its meeting dated 151188 but the Committee had deferred the matter. Thereafter the Screening Committee considered the case of petitioner in its meeting dated 3290. There is no recommendation of any Screening Committee to allow the petitioner to continue in service up to the age of superannuation. In the circumstances as brought ''on record the contention urged is devoid of merit and is not at all acceptable.

Learned Counsel for the petitioner has further contended that the impugned order has been passed on the basis of the recommendation of the Screening Committee which had taken into account the adverse entries awarded against the petitioner against which representations submitted by the petitioner were still pending undisposed of. So far as this aspect is concerned it may be noticed that inspite of full opportunity having been provided the petitioner has not been able to bring on record any proof indicating that any representation had in fact been submitted by him against the adverse entries for the years subsequent to the year 198384. In the counteraffidavit it has been specifically mentioned that no such representation had been received by the Competent Authority. The petitioner sought to rebut the assertions made in the counteraffidavit indicating that a representation had been submitted by him against the entry for the year 198889 on 13190. The photostat copy of the aforesaid representation has been filed alongwith the supplementary affidavit. The aforesaid copy indicates that the said representation is dated 71289 and though addressed to the Secretary Technical Education was handed over to some person whose signatures are undecipherable and it cannot be taken to have been an official receipt. In the counteraffidavit it has been asserted that no such representation had been received by the Competent Authority pointing out that the representation does not bear in dispatch No. etc. and in fact no such representation was ever submitted and is not on record.

In the aforesaid circumstances, considering the .materials brought on record of this case we do not find any merit in the contention of the petitioner that the impugned order stands vitiated on account of omission to consider the representation claimed to have been filed by the petitioner. In fact the petitioner has not been able to substantiate his plea in regard to his submitting representation against the adverse entries awarded to him in question.

In the present case, the respondents have produced the record and the relevant material to demonstrate that the impugned order had been passed in public interest.

Taking into consideration the materials on the record and the nature of the adverse entries awarded to the petitioner, no justifiable ground has been made out for any interference by this Court in the impugned order while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.

The writ petition is accordingly dismissed.

There shall however, be no order as to cost.