The petitioner has also contended that no show cause
notice was ever issued to him on the allegation that he was not
obeying the directions given by the judicial officers. We find that even
though no show cause notice has been issued to the petitioner on this
aspect of the matter, the decision of the Review Committee cannot be
interfered with on this ground alone for the simple reason that it has
been arrived at after overall consideration of the material available
against him. It is equally well settled that even uncommunicated
adverse remarks can be taken into consideration for reviewing the
case of the government servants for continuation in service beyond
the age of 55 years. Therefore, we find no substance in the said
contention.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2960 OF 2014
Kishor s/o Shankarrao Pundlik
.. Versus ..
The State of Maharashtra
CORAM : B. R. GAVAI AND
S. B. SHUKRE, JJ.
DATED : 27th JUNE, 2014.
Citation; 2014(5) MHLJ 488
1. Rule. The learned Assistant Government Pleader
Mrs. Kalyani Deshpande waives service for the respondents. Heard
finally by consent of the parties.
2. By this petition, the petitioner has challenged legality and
correctness of the order of his premature retirement dated 28/3/2014
passed by respondent No.2 following the decision taken by the Review
Committee regarding premature retirement of the petitioner.
3. The petitioner was initially appointed as Junior Clerk on
10/01/1993 and was posted to work at Civil Court, Junior Division,
Kelapur, Distt. Yavatmal. After some years he was promoted as Senior
Clerk and again promoted as Assistant Superintendent on 17/02/2001.
He was posted as Assistant Superintendent at various places, such as at
Wani, Ner, Kelapur and was working as such lastly in the Court of Civil
Judge, Junior Division, Digras. Since he was attaining the age of 55
years, his case was placed for his suitability to continue in service
before the Review Committee of District Court, Yavatmal, which
consisted of Principal District Judge, Yavatmal as Chairman and
District JudgeI
and Civil Judge, Senior Division, Yavatmal as its
members. The Review Committee in its meeting held on 26/3/2013,
reviewed the case of the petitioner and considering his annual
confidential reports, leave account, medical fitness, integrity and the
remarks of his Presiding Officer, decided to observe the work of the
petitioner for a period of one year and thus he was continued for a
period of one year after attaining the age of 55 years.
4. The case of the petitioner, after lapse of the period of about
one year once again came up for consideration for his suitability to
continue in service before the Review Committee. The Review
Committee held its meeting on 27/3/2014 and after considering the
annual confidential reports of the petitioner and also other relevant
material, came to the conclusion that the petitioner was not suitable to
be continued in service and decided to retire him prematurely under
Rule 10 of the Maharashtra Civil Services (Pensions) Rules, 1982 by
issuing the necessary notice. Accordingly, the Principal District and
Sessions Judge, Yavatmal issued notice dated 28/3/2014 to the
petitioner intimating him that he would stand retired from the
government service on 28/6/2014 or the day immediately following
the date of expiry of the period of three months commencing from the
date of service of the notice on him, whichever was later. Being
aggrieved by the same, the petitioner has filed the present writ
petition.
5. Shri Morande, learned Counsel for the petitioner has
assailed the impugned notice on the ground that it has been issued
arbitrarily, without taking into consideration the relevant material
available on record and it is the result of total non application of mind
to the relevant facts speaking positively about the petitioner.
According to him, the decision to retire the petitioner prematurely was
primarily based upon the special report of Shri N. K. Walke, Civil
Judge, Senior Division, who had an opportunity to observe the work
and performance of the petitioner only for four months. He submits
that this report could not have been made a basis for arriving at the
impugned decision.
6. Shri Morande further submits that the Review Committee
has acted in an arbitrary manner when it took the decision to continue
the other officials namely, Shri B. M. Betawar, Superintendent in the
Court of Additional District Judge, Darwha and Shri R. V. Katolkar,
Junior Clerk to the Civil Judge, Senior Division, Yavatmal, whose
confidential reports were adverse and who were facing enquiries. He
submits that the Review Committee could not have applied one
standard for one set of employees and another standard for another
employee. He also submits that a clerical error made in the leave
record, which was corrected and explained by the petitioner to his
superiors, could not have been highlighted against him by terming it as
an instance of doubtful integrity. He further submits that the remarks
of the Judicial Officer made in the report that the petitioner does not
obey the directions also could not have been relied upon by the Review
Committee as no show cause notice was ever issued to the petitioner.
Thus, the learned Counsel for the petitioner submits that this is a fit
case for interfering with the impugned notice.
7. Mrs. Deshpande, learned Assistant Government Pleader for
the respondents has submitted that the scope of judicial review of the
order of premature or compulsory retirement is very limited and the
High Court can not examine the legality or correctness of the order as
if it is a Court of appeal. Learned A.G.P. further submits that it is not
open to the High Court to make any interference with the order of
premature retirement only because in the opinion of the High Court,
another view is possible. She further submits that unless the order is
shown to be ex facie illegal or arbitrary, no judicial review of the order
is permissible.
8. The law of judicial review of the order of premature or
compulsory retirement is now crystallized and well settled. The High
Court can interfere with an order of premature or compulsory
retirement only on the ground of mala fides or on the ground that the
order is based on no evidence or no material whatsoever or it is
arbitrary in the sense that no reasonable person would form requisite
opinion on the given material or in other words, it is a perverse order.
Further, the order of compulsory retirement should not give any hint
of it being stigmatic. If it does, the Court would treat that order as an
order of punishment attracting the provisions of Article 311 (2) of the
Constitution. These are the principles, which have emerged over a
period of time from the several judgments of Hon'ble Apex Court.
In Baikuntha Nath Das Vs. Chief District Medical Officer –
(1992) 2 SCC 299, following principles governing the nature of order
of compulsory retirement and the scope of its review by the Courts
have been laid down.
(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any
suggestion of misbehaviour.
(ii) The order has to be passed by the Government
on forming the opinion that it is in the public
interest to retire a government servant
compulsorily. The order is passed on the
subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the
context of an order of compulsory retirement.
This does not mean that judicial scrutiny is
excluded altogether. While the High Court or
this Court would not examine the matter as an
appellate court, they may interfere if they are
satisfied that the order is passed (a) mala fide,
or (b) that it is based on no evidence, or (c) that
it is arbitrary – in the sense that no reasonable
person would form the requisite opinion on the
given material; in short, if it is found to be a
perverse order.
(iv) The Government (or the Review Committee, as
the case may be) shall have to consider the
entire record of service before taking a decision
in the matter – of course attaching more
importance to record of and performance during
the later years. The record to be so considered
would naturally include the entries in the
confidential records/character rolls, both
favourable and adverse. If a government servant
is promoted to a higher post notwithstanding the
adverse remarks, such remarks lose their sting,
more so, if the promotion is based upon merit
(selection) and not upon seniority.
(v) An order of compulsory retirement is not liable
to be quashed by a court merely on the showing
that while passing it uncommunicated adverse
remarks were also taken into consideration.
That circumstance by itself cannot be a basis for
interference”.
In the case of State of Gujrat & another Vs. Suryakant
Chunilal Shah – 1999 (1) SCC 529 the Hon’ble Apex Court held that
while considering the case of an employee for compulsory retirement,
public interest is of paramount importance. The dishonest, corrupt and
deadwood
deserve to be dispensed with. How efficient and honest an
employee is, is to be assessed on the basis of the material on record,
which may also be ascertained from confidential reports. However,
there must be some tangible material against the employee warranting
his compulsory retirement.
In the case of State of U.P. & another Vs. Bihari Lal – AIR
1995 SC 1161, the Hon’ble Apex Court has placed emphasis upon the
factor of bona fide decision taken in public interest to augment
efficiency in the public service, while examining the legality and
correctness of the decision of compulsory retirement.
In the case of Allahabad Bank Officers' Association Vs.
Allahabad Bank – (1996) 4 SCC 504, it was held thus:
“17. The above discussion of case law makes it clear that
if the order of compulsory retirement casts a stigma on
the government servant in the sense that it contains a
statement casting aspersion on his conduct or character,
then the court will treat that order as an order of
punishment, attracting provisions of Article 311(2) of
the Constitution., The reason is that as a charge or
imputation is made the condition for passing the order,
the court would infer therefrom that the real intention of
the Government was to punish the government servant
on the basis of that charge or imputation and not to
exercise the power of compulsory retirement. But mere
reference to the rule, even if it mentions grounds for
compulsory retirement, cannot be regarded as sufficient
for treating the order of compulsory retirement as an
order of punishment. In such a case, the order can be
said to have been passed in terms of the rule and,
therefore, a different intention cannot be inferred. So
also, if the statement in the order refers only to the
assessment of his work and does not at the same time
cast an aspersion on the conduct or character of the
government servant, then it will not be proper to hold
that the order of compulsory retirement is in reality an
order of punishment. Whether the statement in the
order is stigmatic or not will have to be judged by
adopting the test of how a reasonable person would read
or understand it.”
In the case of Madhya Pradesh State Cooperative Dairy
Federation Limited and another Vs. Rajnesh Kumar Jamindar and
others (
2009) 15 SCC 221, the Hon’ble Apex Court held that judicial
review of an order of compulsory retirement is permissible if the order
is perverse or arbitrary as also in the cases where there is
noncompliance
of statutory duty by statutory authority, but the Court
cannot go into the factual findings. The factors not germane for
passing an order of compulsory retirement should not be taken into
consideration. The criteria and rules adopted by the employer must be
adhered to, to determine whether the employee had become liable for
compulsory retirement. An authority discharging public function must
act fairly.
9. It would thus become clear from the above discussion that
the scope of judicial review of an order of compulsory or premature
retirement is very limited and the Court can examine the legality and
correctness of such an order only on the anvil of arbitrariness or
perversity and whether it is stigmatic in nature or not.
10. On careful perusal of the impugned notice dated
28/3/2014, one can very well see that it is not at all stigmatic in
nature as it nowhere refers adversely to the petitioner. It only
mentions the rule under which the petitioner would stand retired from
the government service after giving notice. It does not cast any
aspersion on the conduct or character of the petitioner. Therefore,
there would be no scope for this Court to review the impugned notice
on the ground of it being in the nature of punishment.
11. As regards the contention that the impugned notice is
primarily based upon the report of Shri N. K. Walke, learned Civil
Judge, Senior Division, who had an occasion to observe the
performance of the petitioner just for four months, we find that same is
not factually correct. The minutes of the review meeting held on
27/3/2014 disclose that the annual confidential reports of the
petitioner for the period from 2008 to 2013 have been particularly
considered and his overall performance and record have also been
considered by the Review Committee in order to reach its decision to
prematurely retire the petitioner. It is also seen from the said minutes
that the Review Committee has also considered the report previously
given by Shri R. R. Raut, the reporting officer, which stated that the
petitioner was not maintaining properly the record and making erasers
as well as additions in his own leave record and this report was based
upon the report of the inspection of the official record taken by the
Inspection Team. The minutes of the Review Committee thus clearly
show that upon overall consideration of the work, conduct and
performance of the petitioner, the Review Committee has taken a
conscious decision to prematurely retire the petitioner in public
interest as he was not found fit and suitable for continuation in service
after completion of the age of 55 years.
12. No doubt, the petitioner was continued for a period of one
year subject to observation of his work and performance, when review
of his work and performance was taken by the previous Review
Committee in its meeting held on 26/3/2013. There is also no doubt
about the fact that his annual confidential reports for the years
200708
and 200809
were below average and thereafter there was
some improvement in his performance. His annual confidential reports
for the years 200910,
201011
and 201112
were respectively below
average; 'B' positively good and average. These confidential reports
have also been considered by the Review Committee and it has come
to the conclusion that overall work and performance of the petitioner
is average. It has also found, upon consideration of the material
available before it, that there was cloud on his integrity. Thus, the
Review Committee, in public interest, decided to prematurely retire
the petitioner. We find neither any mala fides nor any arbitrariness
nor any perversity in the conclusion so reached by the review
committee. After all, the view taken by the Review Committee is based
upon the material available before it and there being no material
placed before us to establish mala fides, it cannot be said to be
actuated by any extraneous consideration. Therefore, it would not be
open for this Court to interfere with the decision taken by the Review
Committee.
13. So far as the contention that the petitioner has been treated
unequally and with different standard is concerned, we find no merit
in the same. The concept of equality, it is well settled, does not
operate in a negative way in as much as, we find that the cases of
S/shri Betwar and Katolkar have different facts and circumstances and,
therefore, cannot be compared with the case of the petitioner. That
apart, both of them, i.e. Shri Betawar and Shri Katolkar, have been
continued in service at the age of 55 years subject to keeping them
under observation for a period of one year. This implies that no final
decision as regards compulsory or premature retirement of the said
officials has been taken so far.
14. The petitioner has also contended that no show cause
notice was ever issued to him on the allegation that he was not
obeying the directions given by the judicial officers. We find that even
though no show cause notice has been issued to the petitioner on this
aspect of the matter, the decision of the Review Committee cannot be
interfered with on this ground alone for the simple reason that it has
been arrived at after overall consideration of the material available
against him. It is equally well settled that even uncommunicated
adverse remarks can be taken into consideration for reviewing the
case of the government servants for continuation in service beyond
the age of 55 years. Therefore, we find no substance in the said
contention.
15. In the above circumstances we find that no case has been
made out for reviewing the impugned notice in extra ordinary writ
jurisdiction of this Court and as such the petition deserves to be
dismissed.
Writ petition is dismissed. No costs.
Print Page
notice was ever issued to him on the allegation that he was not
obeying the directions given by the judicial officers. We find that even
though no show cause notice has been issued to the petitioner on this
aspect of the matter, the decision of the Review Committee cannot be
interfered with on this ground alone for the simple reason that it has
been arrived at after overall consideration of the material available
against him. It is equally well settled that even uncommunicated
adverse remarks can be taken into consideration for reviewing the
case of the government servants for continuation in service beyond
the age of 55 years. Therefore, we find no substance in the said
contention.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2960 OF 2014
Kishor s/o Shankarrao Pundlik
.. Versus ..
The State of Maharashtra
CORAM : B. R. GAVAI AND
S. B. SHUKRE, JJ.
DATED : 27th JUNE, 2014.
Citation; 2014(5) MHLJ 488
1. Rule. The learned Assistant Government Pleader
Mrs. Kalyani Deshpande waives service for the respondents. Heard
finally by consent of the parties.
2. By this petition, the petitioner has challenged legality and
correctness of the order of his premature retirement dated 28/3/2014
passed by respondent No.2 following the decision taken by the Review
Committee regarding premature retirement of the petitioner.
3. The petitioner was initially appointed as Junior Clerk on
10/01/1993 and was posted to work at Civil Court, Junior Division,
Kelapur, Distt. Yavatmal. After some years he was promoted as Senior
Clerk and again promoted as Assistant Superintendent on 17/02/2001.
He was posted as Assistant Superintendent at various places, such as at
Wani, Ner, Kelapur and was working as such lastly in the Court of Civil
Judge, Junior Division, Digras. Since he was attaining the age of 55
years, his case was placed for his suitability to continue in service
before the Review Committee of District Court, Yavatmal, which
consisted of Principal District Judge, Yavatmal as Chairman and
District JudgeI
and Civil Judge, Senior Division, Yavatmal as its
members. The Review Committee in its meeting held on 26/3/2013,
reviewed the case of the petitioner and considering his annual
confidential reports, leave account, medical fitness, integrity and the
remarks of his Presiding Officer, decided to observe the work of the
petitioner for a period of one year and thus he was continued for a
period of one year after attaining the age of 55 years.
4. The case of the petitioner, after lapse of the period of about
one year once again came up for consideration for his suitability to
continue in service before the Review Committee. The Review
Committee held its meeting on 27/3/2014 and after considering the
annual confidential reports of the petitioner and also other relevant
material, came to the conclusion that the petitioner was not suitable to
be continued in service and decided to retire him prematurely under
Rule 10 of the Maharashtra Civil Services (Pensions) Rules, 1982 by
issuing the necessary notice. Accordingly, the Principal District and
Sessions Judge, Yavatmal issued notice dated 28/3/2014 to the
petitioner intimating him that he would stand retired from the
government service on 28/6/2014 or the day immediately following
the date of expiry of the period of three months commencing from the
date of service of the notice on him, whichever was later. Being
aggrieved by the same, the petitioner has filed the present writ
petition.
5. Shri Morande, learned Counsel for the petitioner has
assailed the impugned notice on the ground that it has been issued
arbitrarily, without taking into consideration the relevant material
available on record and it is the result of total non application of mind
to the relevant facts speaking positively about the petitioner.
According to him, the decision to retire the petitioner prematurely was
primarily based upon the special report of Shri N. K. Walke, Civil
Judge, Senior Division, who had an opportunity to observe the work
and performance of the petitioner only for four months. He submits
that this report could not have been made a basis for arriving at the
impugned decision.
6. Shri Morande further submits that the Review Committee
has acted in an arbitrary manner when it took the decision to continue
the other officials namely, Shri B. M. Betawar, Superintendent in the
Court of Additional District Judge, Darwha and Shri R. V. Katolkar,
Junior Clerk to the Civil Judge, Senior Division, Yavatmal, whose
confidential reports were adverse and who were facing enquiries. He
submits that the Review Committee could not have applied one
standard for one set of employees and another standard for another
employee. He also submits that a clerical error made in the leave
record, which was corrected and explained by the petitioner to his
superiors, could not have been highlighted against him by terming it as
an instance of doubtful integrity. He further submits that the remarks
of the Judicial Officer made in the report that the petitioner does not
obey the directions also could not have been relied upon by the Review
Committee as no show cause notice was ever issued to the petitioner.
Thus, the learned Counsel for the petitioner submits that this is a fit
case for interfering with the impugned notice.
7. Mrs. Deshpande, learned Assistant Government Pleader for
the respondents has submitted that the scope of judicial review of the
order of premature or compulsory retirement is very limited and the
High Court can not examine the legality or correctness of the order as
if it is a Court of appeal. Learned A.G.P. further submits that it is not
open to the High Court to make any interference with the order of
premature retirement only because in the opinion of the High Court,
another view is possible. She further submits that unless the order is
shown to be ex facie illegal or arbitrary, no judicial review of the order
is permissible.
8. The law of judicial review of the order of premature or
compulsory retirement is now crystallized and well settled. The High
Court can interfere with an order of premature or compulsory
retirement only on the ground of mala fides or on the ground that the
order is based on no evidence or no material whatsoever or it is
arbitrary in the sense that no reasonable person would form requisite
opinion on the given material or in other words, it is a perverse order.
Further, the order of compulsory retirement should not give any hint
of it being stigmatic. If it does, the Court would treat that order as an
order of punishment attracting the provisions of Article 311 (2) of the
Constitution. These are the principles, which have emerged over a
period of time from the several judgments of Hon'ble Apex Court.
In Baikuntha Nath Das Vs. Chief District Medical Officer –
(1992) 2 SCC 299, following principles governing the nature of order
of compulsory retirement and the scope of its review by the Courts
have been laid down.
(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any
suggestion of misbehaviour.
(ii) The order has to be passed by the Government
on forming the opinion that it is in the public
interest to retire a government servant
compulsorily. The order is passed on the
subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the
context of an order of compulsory retirement.
This does not mean that judicial scrutiny is
excluded altogether. While the High Court or
this Court would not examine the matter as an
appellate court, they may interfere if they are
satisfied that the order is passed (a) mala fide,
or (b) that it is based on no evidence, or (c) that
it is arbitrary – in the sense that no reasonable
person would form the requisite opinion on the
given material; in short, if it is found to be a
perverse order.
(iv) The Government (or the Review Committee, as
the case may be) shall have to consider the
entire record of service before taking a decision
in the matter – of course attaching more
importance to record of and performance during
the later years. The record to be so considered
would naturally include the entries in the
confidential records/character rolls, both
favourable and adverse. If a government servant
is promoted to a higher post notwithstanding the
adverse remarks, such remarks lose their sting,
more so, if the promotion is based upon merit
(selection) and not upon seniority.
(v) An order of compulsory retirement is not liable
to be quashed by a court merely on the showing
that while passing it uncommunicated adverse
remarks were also taken into consideration.
That circumstance by itself cannot be a basis for
interference”.
In the case of State of Gujrat & another Vs. Suryakant
Chunilal Shah – 1999 (1) SCC 529 the Hon’ble Apex Court held that
while considering the case of an employee for compulsory retirement,
public interest is of paramount importance. The dishonest, corrupt and
deadwood
deserve to be dispensed with. How efficient and honest an
employee is, is to be assessed on the basis of the material on record,
which may also be ascertained from confidential reports. However,
there must be some tangible material against the employee warranting
his compulsory retirement.
In the case of State of U.P. & another Vs. Bihari Lal – AIR
1995 SC 1161, the Hon’ble Apex Court has placed emphasis upon the
factor of bona fide decision taken in public interest to augment
efficiency in the public service, while examining the legality and
correctness of the decision of compulsory retirement.
In the case of Allahabad Bank Officers' Association Vs.
Allahabad Bank – (1996) 4 SCC 504, it was held thus:
“17. The above discussion of case law makes it clear that
if the order of compulsory retirement casts a stigma on
the government servant in the sense that it contains a
statement casting aspersion on his conduct or character,
then the court will treat that order as an order of
punishment, attracting provisions of Article 311(2) of
the Constitution., The reason is that as a charge or
imputation is made the condition for passing the order,
the court would infer therefrom that the real intention of
the Government was to punish the government servant
on the basis of that charge or imputation and not to
exercise the power of compulsory retirement. But mere
reference to the rule, even if it mentions grounds for
compulsory retirement, cannot be regarded as sufficient
for treating the order of compulsory retirement as an
order of punishment. In such a case, the order can be
said to have been passed in terms of the rule and,
therefore, a different intention cannot be inferred. So
also, if the statement in the order refers only to the
assessment of his work and does not at the same time
cast an aspersion on the conduct or character of the
government servant, then it will not be proper to hold
that the order of compulsory retirement is in reality an
order of punishment. Whether the statement in the
order is stigmatic or not will have to be judged by
adopting the test of how a reasonable person would read
or understand it.”
In the case of Madhya Pradesh State Cooperative Dairy
Federation Limited and another Vs. Rajnesh Kumar Jamindar and
others (
2009) 15 SCC 221, the Hon’ble Apex Court held that judicial
review of an order of compulsory retirement is permissible if the order
is perverse or arbitrary as also in the cases where there is
noncompliance
of statutory duty by statutory authority, but the Court
cannot go into the factual findings. The factors not germane for
passing an order of compulsory retirement should not be taken into
consideration. The criteria and rules adopted by the employer must be
adhered to, to determine whether the employee had become liable for
compulsory retirement. An authority discharging public function must
act fairly.
9. It would thus become clear from the above discussion that
the scope of judicial review of an order of compulsory or premature
retirement is very limited and the Court can examine the legality and
correctness of such an order only on the anvil of arbitrariness or
perversity and whether it is stigmatic in nature or not.
10. On careful perusal of the impugned notice dated
28/3/2014, one can very well see that it is not at all stigmatic in
nature as it nowhere refers adversely to the petitioner. It only
mentions the rule under which the petitioner would stand retired from
the government service after giving notice. It does not cast any
aspersion on the conduct or character of the petitioner. Therefore,
there would be no scope for this Court to review the impugned notice
on the ground of it being in the nature of punishment.
11. As regards the contention that the impugned notice is
primarily based upon the report of Shri N. K. Walke, learned Civil
Judge, Senior Division, who had an occasion to observe the
performance of the petitioner just for four months, we find that same is
not factually correct. The minutes of the review meeting held on
27/3/2014 disclose that the annual confidential reports of the
petitioner for the period from 2008 to 2013 have been particularly
considered and his overall performance and record have also been
considered by the Review Committee in order to reach its decision to
prematurely retire the petitioner. It is also seen from the said minutes
that the Review Committee has also considered the report previously
given by Shri R. R. Raut, the reporting officer, which stated that the
petitioner was not maintaining properly the record and making erasers
as well as additions in his own leave record and this report was based
upon the report of the inspection of the official record taken by the
Inspection Team. The minutes of the Review Committee thus clearly
show that upon overall consideration of the work, conduct and
performance of the petitioner, the Review Committee has taken a
conscious decision to prematurely retire the petitioner in public
interest as he was not found fit and suitable for continuation in service
after completion of the age of 55 years.
12. No doubt, the petitioner was continued for a period of one
year subject to observation of his work and performance, when review
of his work and performance was taken by the previous Review
Committee in its meeting held on 26/3/2013. There is also no doubt
about the fact that his annual confidential reports for the years
200708
and 200809
were below average and thereafter there was
some improvement in his performance. His annual confidential reports
for the years 200910,
201011
and 201112
were respectively below
average; 'B' positively good and average. These confidential reports
have also been considered by the Review Committee and it has come
to the conclusion that overall work and performance of the petitioner
is average. It has also found, upon consideration of the material
available before it, that there was cloud on his integrity. Thus, the
Review Committee, in public interest, decided to prematurely retire
the petitioner. We find neither any mala fides nor any arbitrariness
nor any perversity in the conclusion so reached by the review
committee. After all, the view taken by the Review Committee is based
upon the material available before it and there being no material
placed before us to establish mala fides, it cannot be said to be
actuated by any extraneous consideration. Therefore, it would not be
open for this Court to interfere with the decision taken by the Review
Committee.
13. So far as the contention that the petitioner has been treated
unequally and with different standard is concerned, we find no merit
in the same. The concept of equality, it is well settled, does not
operate in a negative way in as much as, we find that the cases of
S/shri Betwar and Katolkar have different facts and circumstances and,
therefore, cannot be compared with the case of the petitioner. That
apart, both of them, i.e. Shri Betawar and Shri Katolkar, have been
continued in service at the age of 55 years subject to keeping them
under observation for a period of one year. This implies that no final
decision as regards compulsory or premature retirement of the said
officials has been taken so far.
14. The petitioner has also contended that no show cause
notice was ever issued to him on the allegation that he was not
obeying the directions given by the judicial officers. We find that even
though no show cause notice has been issued to the petitioner on this
aspect of the matter, the decision of the Review Committee cannot be
interfered with on this ground alone for the simple reason that it has
been arrived at after overall consideration of the material available
against him. It is equally well settled that even uncommunicated
adverse remarks can be taken into consideration for reviewing the
case of the government servants for continuation in service beyond
the age of 55 years. Therefore, we find no substance in the said
contention.
15. In the above circumstances we find that no case has been
made out for reviewing the impugned notice in extra ordinary writ
jurisdiction of this Court and as such the petition deserves to be
dismissed.
Writ petition is dismissed. No costs.
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