Om Prakash Asati Vs. State
of U.P. & Ors.
[Special Leave
Petition (C) Nos. 13896-13897 of 2008]
J U D G M E N T
JAGDISH SINGH KHEHAR,
J.
1.
The
petitioner herein, having qualified the B.E. examination, came to be appointed as
Assistant Engineer, in the Local Self Engineering Department of the State of
Uttar Pradesh, on 3.3.1974. The Uttar Pradesh Water Supply and Sewerage Act was
enacted in 1975.
The aforesaid
enactment resulted in the creation of the Uttar Pradesh Jal Nigam (hereinafter referred
to as, the Jal Nigam). In 1976 the services of the petitioner came to be
allocated to the Jal Nigam, where the petitioner was absorbed against the post
of Assistant Engineer, on regular basis. While in the employment of the Jal
Nigam, the petitioner came to be promoted to the post of Executive Engineer, on
1.6.1996.
2.
It
is the claim of the petitioner, that on the eve of his attaining the age of 50 years
in January 2001, his claim for retention in service was placed before a
Screening Committee. The Screening Committee found the petitioner fit to
continue in service. It is therefore, that the petitioner remained in the
employment of the Jal Nigam beyond the age of 50 years. The instant stance
adopted by the petitioner is seriously contested at the hands of the respondents.
It is the assertion
of the respondents, that the Screening Committee did not evaluate the claim of the
petitioner for extension in service beyond the age of the 50 years, on account
of the fact that a departmental inquiry was pending against him. The position
adopted by the respondents in our considered view is wholly unjustified. Even
after the culmination of the departmental proceedings, the petitioner was permitted
to continue in service. It is therefore apparent, that the petitioner satisfied
the standards adopted by the Jal Nigam, for continuation in service beyond the age
of 50 years, and as such, his continuation thereafter must be deemed to have been
with the implied approval of his employer, the Jal Nigam.
3.
By
orders dated 1.9.2005, several employees of the Jal Nigam, including the petitioner,
were prematurely retired from service. The aforesaid order (pertaining to the
petitioner) is available on the record of this case as Annexure P1. A perusal
thereof reveals, that the retirement of the petitioner had been ordered, in
exercise of powers emerging from 3the amended provisions of Fundamental Rule 56(c)
of the Financial Handbook, Volume II (Parts II to IV).
The instant provision
is being extracted hereunder : "56(c) Notwithstanding anything contained in
clause (a) or clause (b), the appointing authority may, at any time by notice
to any Government servant (whether permanent or temporary), without assigning
any reason, require him to retire after he attains the age of fifty years or such
Government servant may by notice to the appointing authority voluntarily retire
at any time after attaining the age of forty five years or after he has
completed qualifying service of twenty years".
4.
It
is the case of the petitioner, that the Screening Committee which evaluated the
case of the petitioner for continuation in service, had adopted a criterion for
screening the claim of the employees of the Jal Nigam. Under the said
criterion, marks were awarded to the employees falling in the zone of
consideration. The afore stated criterion provided for deduction of one mark for
every adverse entry, as well as, for every punishment awarded during the course
of employment. Marks were awarded keeping in mind the employees annual
assessment.
It is also the contention
of the learned counsel for the petitioner, that the criterion framed by the Screening
Committee also postulated, that an employee who had been awarded a punishment
of recovery, as also, an employee who had deposited any amount towards recovery,
as a result of some fault/mistake committed by him in the discharge of his
duties, would be a valid ground for the employee to be prematurely retired.
It is also the contention
of the learned counsel for the petitioner, that based on the criterion adopted
by the Jal Nigam, an employee belonging to the general category would be
entitled to continue in service only if he was awarded 9 or more marks. For an
employee belonging to the reserved categories, the Jal Nigam had prescribed a
minimum of 6 marks for retention in service.
5.
The
first and foremost contention advanced at the hands of the learned counsel for
the petitioner was, that the criterion adopted by the Jal Nigam was illegal and
unacceptable in law, as the same was in complete derogation of Fundamental Rule
56(c). It was therefore prayed, that the impugned order be set aside on account
of the fact, that while passing the same the respondents had taken the decision
on the petitioners suitability by applying a criterion which was wholly illegal
and unsustainable in law.
In order to substantiate
his contention, learned counsel for the petitioner invited our attention to a
decision rendered by a Division Bench of the High Court of judicature at Allahabad
(Lucknow Bench) in Mahesh Chandra Agrawal vs. State of U.P. and Ors. (Writ
Petition No.1888 (S/B) of 2005, decided on 27.3.2006), as well as, on another
judgment rendered by the same Division Bench in Naresh Kumar Aggarwal vs. State
of U.P. and Ors. (Writ Petition No.1955 (S/B) of 2005, decided on 19.7.2006).
Relying on the aforesaid
two judgments, it was the contention of the learned counsel for the petitioner,
that the criterion relied upon to pass the impugned order against the petitioner
(in the instant case) had been 5considered by the Division Bench which decided
the aforesaid two cases, and the same had been set aside as being unsustainable
in law.
It is also brought to
our notice by the learned counsel for the petitioner, that the orders dated 27.3.2006
and 19.7.2006 passed by the High Court of judicature at Allahabad (Lucknow
Bench) were assailed before this Court, but the petitions for special leave to
appeal, were dismissed.
It is therefore the contention
of the learned counsel for the petitioner, that the determination rendered by the
High Court of judicature at Allahabad (Lucknow Bench) on the issue of validity
of the criterion adopted by the Jal Nigam in prematurely retiring its employees
under Fundamental Rule 56(c) had attained finality. Based on the aforesaid assertions,
it is the submission of the learned counsel for the petitioner, that the impugned
order of premature retirement, passed in the instant case against the
petitioner on 1.6.1996, was also liable to be set aside.
6.
Insofar
as the first contention of the learned counsel for the petitioner is concerned,
it would be relevant to notice, that the petitioner assailed the impugned order
dated 1.9.2005 before the High Court of judicature at Allahabad by filing Civil
Miscellaneous Writ Petition No.64396 of 2005.
The aforesaid writ petition
came to be dismissed by a Division Bench of the High Court on 3.5.2006. Dissatisfied
with the impugned order dated 3.5.2006, the petitioner preferred Civil Miscellaneous
Review Application No.144184 of 2006. The said Review Application was also dismissed
on 29.2.2008. The orders dated 3.5.2006 and 29.9.2008 rendered by the High
Court of judicature at Allahabad besides the order of premature retirement
dated 1.9.2005, have been assailed by the petitioner through this petition.
7.
In
order to repudiate the first contention advanced at the hands of the learned
counsel for the petitioner, learned counsel for the respondents vehemently
contended, that the petitioner is not entitled to raise the instant issue
before this Court on account of the fact, that the criterion adopted by the Screening
Committee which had led to the passing of the impugned order of premature retirement
dated 1.9.2005, had not been assailed by the petitioner before the High Court. It
is also contended, that the evaluation of the record of the petitioner independently
of the criterion adopted by the Screening Committee would also establish, that the
Jal Nigam was fully justified in passing the impugned order of premature retirement
dated 1.9.2005.
8.
We
have given our thoughtful consideration to the first contention at the hands of
the learned counsel for the petitioner. In our considered view in the judgments
rendered by the Division Bench of the High Court of judicature at Allahabad
(Lucknow Bench) in Writ Petition No.1888 (S/B) of 2005 and Writ Petition
No.1955 (S/B) of 2005 it was held, that the criterion adopted by the Screening Committee
for prematurely retiring the employees of the Jal Nigam was illegal and not in
consonance with law.
A plea of the nature
canvassed at the hands of the learned counsel for the respondents (as has been
noticed in the foregoing paragraph), is no longer available to the respondents to
defeat the claim of the petitioner. The validity of the criterion adopted by
the Jal Nigam for prematurely retiring its employees is a pure question of law.
The same having attained finality against the respondents, is liable to be respectfully
adhered to.
We therefore, hereby,
deprecate the action of the respondents in canvassing the instant proposition. Once
a challenge raised at the hands of the respondents to the judgments relied upon
by the learned counsel for the petitioner remained futile before this Court, the
same should have been accepted without any further protestation. We, therefore,
hereby reject the contention advanced at the hands of the learned counsel for the
respondents that the criterion adopted by the Jal Nigam was enforceable against
the petitioner herein.
9.
The
question which still arises for consideration is, whether the setting aside of
the criterion adopted by the Screening Committee would ipso facto result in the
negation of the impugned order dated 1.9.2005 (by which the petitioner was
prematurely retired from service)? According to the learned counsel for the
respondents, even if the criterion adopted by the Screening Committee (for the sake
of arguments), is accepted as invalid in law, the impugned order of premature
retirement dated 1.9.2005 will have to be independently examined in the light of
the material taken 8into consideration by the Screening Committee. According to
the learned counsel for the respondents the impugned order dated 1.9.2005, if so
evaluated, would stand the scrutiny of law.
10.
10.
During the course of consideration of the present controversy, we had the occasion
of going through the judgments rendered by the High Court of judicature at
Allahabad (Lucknow Bench) in Writ Petition No.1888 (S/B) of 2005, and in Writ Petition
No.1955 (S/B) of 2005. In both the aforesaid decisions, after the High Court accepted
the contention of the respective petitioner therein, and set aside the criterion
adopted by the Selection Committee, the Court shorn of the parameters laid down
in the said criterion, independently evaluated the veracity of the impugned
orders of premature retirement.
This exercise was
sought to be carried out on the basis of the record taken into consideration by
the Screening Committee in arriving at the conclusion that the petitioner deserved
to be retired prematurely. The High Court therefore examined at its own,
whether there were sufficient reasons for passing the impugned orders of premature
retirement against the concerned petitioners. We are of the view, that the
course adopted by the High Court in both the aforesaid cases, was just an
appropriate.
We, therefore, hereby
uphold the instant contention at the hands of the learned counsel for the
respondents, that the impugned order dated 1.9.2005 passed by the Jal Nigam,
prematurely retiring the petitioner from its employment, cannot be set aside merely
because the criterion adopted by the Jal Nigam has been set aside. The veracity
of the impugned order will have to be examined independently of the criterion
so as to determine, whether or not the impugned order is sustainable on the
basis of the record taken into consideration by the Screening Committee.
11.
11.
It is the aforesaid determination at our hands, that prompted the learned
counsel for the petitioner to raise the second contention, namely, that the material
taken into consideration for prematurely retiring the petitioner did not
justify the passing of the impugned order dated 1.9.2005. Insofar as the
instant contention is concerned, learned counsel for the rival parties invited out
attention to Annexure R/4 (appended to the counter affidavit filed on behalf of
the Jal Nigam), i.e. a compilation of the service profile of the petitioner.
A perusal thereof reveals,
that the entries recorded in the Confidential Reports of the petitioner for the
preceding 10 years were outlined therein. The entries taken into consideration
were for the years 1994-1995 to 2003-2004. Shorn of further details it would be
relevant to mention, that out of the aforesaid entries the work and conduct of the
petitioner for the years 1997-1998, 1998-1999, 1999-2000 and 2002-2003 were recorded
as "satisfactory". Entries for the year 1996-1997, 2000-2001, 2001-2002
and 2003-2004 were recorded as "good".
For the remaining two
entries, the one for the year 1994-1995 was recorded as "very good"
and for a part of the year of 1995-1996 the work of the petitioner was assessed
as "excellent". It is therefore apparent from the Annual
Confidential Report of the petitioner, that over the last decade, preceding the
impugned order dated 1.9.2005, there has been a regular and consistent deterioration
from "excellent" and "very good" to "satisfactory".
In fact in as many as 4 of the preceding 7 years, the work and conduct of the petitioner
was evaluated as "satisfactory".
The compilation
Annexure R/4 also outlines the various orders of punishment inflected on the petitioner.
The orders of punishment taken into consideration were dated 18.4.2002, 23.11.2004
and 4.1.2005. The petitioner was punished 3 times in the preceding 4 years. Details
in respect of the orders of punishment were mentioned in the counter affidavit
filed on behalf of the respondents. Its summary was also made available for our
consideration.
The said summary, pertaining
to the orders of punishment, is being extracted hereunder: "That the case
of the petitioner was also screened and the petitioner has earned only 5.59
marks out of 30 marks which shows that his performance during last 10 years was
not satisfactory. Besides this, vide Office Order dated 18.4.2002 in respect of
irregularities inviting in tenders it has been found that the petitioner has
not compared the rate offered by the contractor with Schedule G and H which is a
gross negligence, hence he should be given a warning to be more cautious in
future (Annexure R/1).
That again vide
office order dated 23.11.2004 it has been found that respondent while posted as
Executive Engineer at Lalitpur did not reside at Lalitpur and used to come from
Jhansi which is against the Rules. Further it has been found that there has
been delay in work, excess payment, financial irregularity and mis-utilization of
funds because the petitioner could not had administrative control while discharging
his responsibilities which is proved, hence a warning to this effect has been
issued to the petitioner and it is directed that the order be kept in his
personal file and character roll (Annexure R/2).
That again vide
Officer Order dated 04.01.2005 after completion of an enquiry against the respondent
and relevant documents it has been found that all the charges against him is
proved regarding the incident at Kanpur while he was working as Project Manager
in Ganga Pollution Control Unit in which 6 labourers have died and the Corporation
had to pay compensation in respect of their death.
Hence he has been awarded
censor entry and his two increments were withheld. It was further directed that
the said order be kept in his character roll and personal file (Annexure
R/3)".From the above it is apparent, that the claim of the petitioner was
considered by the Screening Committee on the basis of the annual entries in his
service record and the punishments suffered by him during the recent past.
12.
We
have given our thoughtful consideration to the material taken into consideration
by the Screening Committee before passing the impugned order dated 1.9.2005. Besides
the gradual deterioration in his career-graph noticeable from the last 7 years of
his service (before the impugned order was passed), wherein 4 annual reports
assessed the work and conduct of the petitioner as "average".
It is also apparent that
punishment orders were passed against the petitioner on 3 occasions within the last
4 years. These punishments were ordered because of negligence and irregularity in
granting tenders; delay in work, excess payment, financial irregularity and mis-utilization
of funds, lack of administrative control; and death of labourers because of lack
of supervision by the petitioner which resulted in huge financial loss by way
of compensation which had to be paid to the families of the deceased labourers.
Based on the
aforesaid, it would not be incorrect to conclude, that there was a gradual deterioration
in the overall performance of the petitioner. In the aforesaid view of the
matter, it is not possible for us to find fault with the impugned order of
premature retirement dated 1.9.2005. We are therefore satisfied, that the service
record of the petitioner was objectively evaluated. Thus viewed, the passing of
the impugned order cannot be described as arbitrary or unfair in any manner. The
deliberations adopted by the Jal Nigam while passing the impugned order dated
1.9.2005 are, therefore, not liable to be interfered with.
13.
For
the reasons recorded hereinabove we are of the view, that the impugned orders dated
27.3.2006 and 19.7.2006 passed by the High Court, upholding the order dated
1.9.2005, were fully justified and call for no interference.
14.
Dismissed.
..................................J.
(Asok Kumar Ganguly)
..................................J.
(Jagdish Singh Khehar)
New
Delhi;
January
13, 2012.
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