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service matter – extension in service beyond the age of the 50 years in jal Nigam =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 6 labourers because of lack of

“REPORTABLE”

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) Nos. 13896-13897 of 2008

 
Om Prakash Asati …. Petitioner

 
Versus
State of U.P. & Ors. …. Respondents

 
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.
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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
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the 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
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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
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considered 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
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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
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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
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into 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. 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
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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. 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
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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
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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 6 labourers because of lack of
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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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