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Judgment
The petitioner was initially appointed as Junior Engineer (Civil), then known as Overseer, in the Irrigation Department, Government of Uttar Pradesh and his appointment was approved by the Public Service Commission in the year 1960 and after passing requisite examination conducted by the Associated Membership of the Institute of Engineers India he became eligible for promotion on the post of Assistant Engineer (Civil) in April 1979. However, approval could not be granted or communicated as during the meantime the petitioner was subjected to a charge sheet in July 1979. For the purpose of present writ petition, the petitioner has challenged his order of compulsory retirement dated 31.10.1981 (Annexure4).
The material which has been relied upon for compulsorily retiring the petitioner has been indicated in paragraph 14 of the counter affidavit. In paragraph 14 of the counter affidavit it has been stated that the petitioner was compulsorily retired on the basis of over all assessment of record of last ten years. The adverse material which was allegedly against the petitioner was the adverse entry for the period 197980 which was communicated to the petitioner but no representation was received against the said entry by the department. The censure entry for the year 198687 which was awarded after detailed departmental enquiry was also the basis of compulsory retirement of the petitioner. The other adverse material was stoppage of increments and non certifying of the integrity for the year 197879 on the basis of departmental enquiry. Thus the material which was relied upon by the screening Committee at the time of compulsory retirement of the petitioner was the adverse entry for the year 197980 and secondly the censure entry for the year 198687 which was awarded after detailed departmental enquiry and stoppage of increment as also non certifying the integrity for the year 197879 and that too on the basis of the same departmental enquiry.
The State has not brought on record any other material which could be taken as adverse and neither has stated anywhere that the entries of the subsequent years were adverse and were not good. Apart from the aforesaid adverse entry for the year 197879 and the censure entry for 198687, which is said to be the basis of passing the order of compulsory retirement, the entry for the period 197980 has been brought on record and is annexed as AnnexureCA 1 to the counter affidavit. This adverse entry relates to the period 1.4.1979 to 2.8.1979, 4.5.1979 to 31.3.80. The charge sheet which was issued to the petitioner related to the period 16th September, 1977 to 2nd August 1979. It is not the case of the opposite parties that for the period 197980 the integrity of the petitioner was not certified.
It appears that the petitioner being aggrieved by the order of punishment awarding censure entry for the year 198687 withholding the increment and non certifying the integrity, filed claim petition No.469/IV/1987 before the Public Services Tribunal, challenging the order of punishment dated 12th November, 1986. During pendency of this claim petition the question regarding compulsory retirement of the petitioner was considered by the Screening Committee and the appointing authority passed an order of compulsory retirement dated 31st March, 1990. The claim petition was duly contested by the State. The Tribunal vide its order dated 21st August 1995 allowed the claim petition and quashed the order of punishment passed against the petitioner including the adverse entry as well as the order stopping increment and non certifying the integrity.
After the Tribunal has passed the order quashing the aforesaid punishment, the State Government in compliance of the aforesaid order gave all consequential benefits to the petitioner including promotion namely his services were regularized on the post of Assistant Engineer since 1979 and he was given due promotion on the higher post and his pay was refixed accordingly and all the consequential benefits were awarded to the petitioner.
The submission of the learned counsel for the petitioner is that in view of the fact that the basis of compulsory retiring the petitioner was the orders of punishment as indicated in the counter affidavit and also withholding the increment for the period 198687 and non certifying the integrity for the year 197879 and that punishment having been quashed by the Tribunal, there was no material before the appointing authority on the basis of which the petitioner could have been retired compulsorily.
The order of the Tribunal has not been challenged by the State Government and it has attained finality.
The compulsory retirement is to be made in public interest in case the Government servant has outlived his utility or has become dead wood. The conduct, performance and integrity of the government servant is reflected from the character roll entry which do form the basis of consideration of public interest in the matter of compulsory retirement. In the case of State of Gujarat v. Chunni Lal Shah reported in 1991 SCC 579 the Apex Court observed as followed:
�The performance of a government servant is reflected in the annual character roll entries and, therefore, one of the method of discerning the efficiency, honesty or integrity of a government servant is to look at his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of ''integrity''. If this is missing the whole bundle would disperse. A government servant has, therefore, to keep his belt tight.�
In the instant case after quashing the punishment order dated 12th November, 1986 the only adverse entry which is said to be the basis of retiring the petitioner compulsorily is the adverse entry for the year 197980. This solitary adverse entry also covers a substantial period which was the subject matter of the charge sheet. The charge sheet covers the period from 16th September, 1977 to 2nd August 1979 whereas this entry is for the period from 1st April 1979 to 2nd August 1979 and 4th May 1979 to 31st March 1980.
Apart from the fact that the substantial period is covered by the charge sheet on the basis of which the punishment was awarded to the petitioner which punishment has subsequently been set aside by the Tribunal, it is also to be seen that his solitary entry can not constitute adverse material for retiring him compulsorily. The working of the petitioner after the period 197980 has not been found to be unsatisfactory as has already been referred to above, there is no adverse material till the date of passing of order of compulsory retirement, therefore, the order of compulsory retirement is liable to be quashed, as no adverse material is there nor has been brought on record.
In the case of State of Gujarat v. Chunni Lal Shah (supra) the Supreme Court has said that the �purpose of adverse entries is primarily to forewarn the government servant to mend his ways and to improve his performance. This is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.�
It is the specific case of the State that ten years'' service record was taken into consideration in the case of the petitioner. The order of compulsory retirement was passed in the year 1990. Thus the entry of the years 197980 was all the more or less the first entry of the period which was under consideration. Subsequent performance and conduct of the petitioner was to be given due weightage by the screening committee or by the appointing authority but the same has not been given by the appointing authority while passing the impugned order dated 12th November, 1986.
Reliance has also been placed on the case of H.G. Venkatachaliah Setty v. Union of India and others, reported in (1997) 11 SCC 366. In support of his contention that the sole adverse remark could not be made the basis of compulsory retirement. The Apex Court has observed that the question whether the action for compulsory retirement should be taken on the basis of solitary adverse entry has to be considered on the facts of each case. In the case the solitary adverse entry was with respect to the integrity of the employee although preceded by promotion was taken to be sufficient for ordering compulsory retirement. In the instant case as we have already observed that the learned Standing counsel has neither brought on record any adverse material nor any adverse entry, Apart from adverse entry for the years 197980 but at no point of time the integrity of the petitioner was withheld. In view of the fact that solitary adverse remark for the year 197980 in our opinion cannot constitute a basis for retiring a government servant compulsorily. Reasons for such observation have already been given by us in the earlier part of the judgment.
The reliance has also been placed upon the case of Amar Kant Choudhary v. State of Bihar and others reported in (1984) 1 SCC 694. This was a case of promotion where on the date of consideration for promotion certain adverse material was existing against the petitioner of that writ petition which later on was expunged. The Supreme Court found that this decision of the selection committee regarding superseding the petitioner in its meeting in which the case of the petitioner was to be considered, is vitiated as the adverse remark was later on expunged.
From what we have observed above it is clear that apart of the adverse entry for the year 197980 which we have not found to be adverse for the purpose of adverse material for compulsory retiring the petitioner and the order of punishment dated 12th November, 1986 which order has been quashed by the Tribunal there existed no material before the screening committee or the appointing authority so as to reach to the conclusion that the petitioner is not efficient and has lost his utility in service as such the impugned order cannot be sustained and is hereby quashed. The writ petition is allowed. No order as to costs.
Let a certiorari be issued quashing the impugned order of compulsory retirement dated 31st March, 1990 as contained in Annexure4 to the writ petition. The petitioner is entitled for all consequential benefits upto the date of his superannuation.
(Petition allowed)