R.B. Misra, J.@mdashHeard Sri A.N. Tripathi, learned counsel for the petitioner and Sri S.S. Sharma, learned Standing Counsel for the State. No counsel appears on behalf of the U.P.S.R.T.C.
In this petition the order dated 2621990 has been challenged whereby the petitioner has been compulsory retired. According to the petitioner his service was satisfactory, he was never conveyed adverse entry and he was three times promoted and the compulsory retirement order was passed as indicated above by the authority who is not the competent authority because the petitioner was deployed earlier in U.P. Govt. Roadways before being taken over by the U.P.S.R.T.C. and the screening committee looked the entire record and has passed the said order. The petitioner could not avail the alternative remedy because he had filed the representation and the same was not decided, therefore, he has come to pursue this writ petition directly. The counter and supplementary counteraffidavit has been filed by the respondent in which the respondent has submitted that the adverse entries available on the records were not necessary to be given to the petitioner.
2. The Counteraffidavit and rejoinder affidavit have also been exchanged. As averred in the counteraffidavit that before creation of the U.P. State Road Transport Corporation with effect from 161977 under Section 3 of the Road Transport Corporation Act, 1950, the transport services in the State of U.P. were being provided by the erstwhile U.P. Government Roadways which has a department of the State Government and the employees working therein were the government servants and they were governed by the rules and regulations applicable to the Government servants of State Government. According to the counteraffidavit the petitioner was initially appointed as Junior Station Incharge in the erstwhile U.P. Government Roadways on 1931962 and was later on confirmed on the said post. According to the counteraffidavit, U.P. State Road Transport Corporation was constituted with effect from 161972 under Section 3 of the Road Transport Corporation Act 1950 vide notification No. 2869/XXX43268 dated 3151972 published in the gazette extra ordinary dated 161972 and it succeeded in toto to the assets and liabilities of the erstwhile U.P. Government Roadways vide Notification No. 3242/XXX2150N72 dated 3061972 published in gazette dated 1571972 as extended subsequently. According to the counteraffidavit G.O. No. 3000/XXX2170N/72 dated 761972 as amended by G.O. No. 3414/XXX2170N/72 dated 571972 all the employees of the erstwhile U.P. Government Roadways were sent on deputation with the Corporation. Thus the petitioner was a government servant on deputation with the Corporation. According to the Counter affidavit the Corporation framed regulations known as U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations 1981 in exercise of powers under Section 45 (2) (c) of the Road Transport Corporation Act 1950 with effect from 1961981 laying down the terms and conditions of service for its employees. In view of Section 4 read with U.P. Roadways Organisation (Abolition of Posts and Absorption of Employees) Rules 1982 and U.P. State Road Transport Corporation Employees (Other than Officers) Service (1st Amendment) Regulations, 1982 all the employees of the erstwhile U.P. Government Roadways unless they in writing opted otherwise stood absorbed in the services of the Corporation with effect from 2881982.
3. According to the counteraffidavit after creation of the U.P. State Road Transport Corporation the petitioner was promoted to the post of the Senior Station Incharge by an order dated 2921980 and then on the post of the Traffic Superintendent by an order dated 2991983 and then to the post of the Station Superintendent by an order dated 8121986. At the time of compulsory retirement the petitioner was working on the post of the Station Superintendent and was governed by the U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981. According to the counteraffidavit the corporation has been issuing directions from time to time for constituting the Screening Committee for the purposes of examining the service record of those employees who had crossed 50 years of age to compulsorily retire those officers/employees whose retention in service is not in public interest/corporation interest. The corporation has always the power to energise its mechineries and to make it more effective. The relevant provisions of Regulation 38 reads as under :
Compulsory and voluntary retirement:
(1) Notwithstanding anything contained in Regulations 37, the appointing authority may at any time, by notice to an employee (whether permanent or temporary) not being a workman, retire him to retire after he attains the age of fifty years without assigning any reason, such employee may likewise by notice to the appointing authority voluntarily retire at any time after attaining the age of 45 years after he has completed the qualifying service of twenty years.
(2) The period of such notice shall be three months:
Provided that
Explanation (1) The decision of the appointing authority under regulation (1) to require an employee to retire as specified there in shall be taken, if it appears to the said authority to be is the public interest or in the interest of the corporation, but nothing herein contained shall be construed to require any recital in the order of such decision having been taken in the public corporation interest :
(2) In order to be satisfied whether it will be in the corporation public interest to require an employee to retire under the regulation, the appointing authority may take into consideration and material relating to the employee and nothing herein contained shall be construed to exclude from such consideration
(a) An entry relating to any period before such employee was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an (ad hoc) basis or
(b) an entry against which a representation is pending provided that the representation is also taken into consideration along with the entry or
(c) any report of the vigilance establishment, constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.
(3) Every such decision shall be presumed to have been taken in public interest or the interest of the corporation.
Compulsory or Premature Retirement
�One of the conditions of the 1st respondent''s service is that the Government can choose to retire any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned Rule 56 (j) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facts of the pleasure doctrine embodied in Art. 310 of the constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in Government organisations, there is good deal of dead wood. It is in the public interest to chop off the same. Fundamental Rule 56 (j) holds the balance between the rights of the individual Government servant and the interest of the public. While a minimum service is guaranteed to the Government servant, the Government is given the power to energies its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.� (Union of India v. J.N. Sinha, AIR 1971 SC 40 : (1971) 1 SCR 791).
�The decision in The State of Uttar Pradesh v. Shyam Lal Sharma (AIR 1971 SC 2151) : State of U.P. v. Ramchandra, AIR 1976 SC 2547 and Srestha v. Commissioner of Income Tax, (1973) 2 MLJ 495... It has been repeatedly pointed out by the Supreme Court that Courts cannot delve into the records and pierce the veil of the order for discovering a stigma. What is open to the Court is that it could find out a stigma if it is apparent on the record or otherwise clear and springs from the order, vide the decisions in State of U.P. v. Sughar Singh, AIR 1974 SC 423 : State of U.P. v. Ramchandra and State of Bihar v. Shiva Bhikshuk Misra, AIR 1971 SC 1011. Unless the Court is satisfied that such a stigma stems out from the order, an interference with an order of compulsory retirement is not envisaged while exercising the extra ordinary jurisdiction under Article 226 of the Constitution. (K. Venugopalan v. Government of Tamil Nadu, 1979 SLJ 517)�
In Shyam Lal v. State of U.P., (1955) 1 SCR 26; Baldev Raj Chadha v. Union of India, AIR 1981 SC 70; Union of India v. J.N. Sinha, (1971) SCR 791; Samsher Singh v. State of Punjab, (1975) 1 SCR 814 : AIR 1974 SC 2192 and Anoop Jaiswal v. Government of India, (1984) 2 SCR 453, the Supreme Court observed:
�On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputation against the Government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bonafide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the Government servant as has been held by this Court in Anoop Jaiswal''s case. (Ram Eqbal Sharma v. State of Bihar, (1990) 2 SCR 679 : AIR 1990 SC 1368)�
In ''Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 1 SCR 836 : (1992) 2 SCC 299 : 1992 AIR SCW 793), case'' the Supreme Court serveyed the entire case law on the subject and summed up their conclusions in the following words:
�(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.
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 circumstances by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above.
4. According to the counteraffidavit it was decided by the Corporation to constitute a screening committee for examining the cases of those officers/employees who had completed 50 years of age. Accordingly, screening committee was constituted in all four zones of the Corporation viz, East, West, North and Central for examining the cases of those officers/employees whose appointing authority was the Deputy General Manager of the zone concerned.
5. Similarly the screening committee which was constituted by the Head office of the Corporation at Lucknow for examining the cases of those employee whose appointing authority was the Managing Director or Additional General Manager (Operation), U.P. State Road Transport Corporation or the Additional General Manager (Operation), U.P. State Road Transport Corporation or the Additional General Manager (Technical) UPSRTC Lucknow.
6. The screening Committee which was constituted by the Head office of the Corporation for examining the case of those non technical employee whose appointing authority was the Additional General Manager (Operation), U.P. State Road Transport Corporation, Lucknow consisting of :
(1) Additional General Manager (Operation) Chairman.
(2) Deputy General Manager (Personal) Member
(3) Deputy General Manager (Corporation) Member
7. According to the counteraffidavit the Screening Committee in its meeting held on 31121989 considered the cases of all non technical employees which included the petitioner also. Since the petitioner''s service record was not satisfactory and since the petitioner had adverse entries for the year 196364, 197374, 197576 and 198889 the Screening Committee was of the opinion that he be compulsorilily retired from service in public interest/corporation interest. On the basis of the recommendations of the Screening Committee the petitioner was compulsory retired from service in exercise of powers under Regulation 38 by an order dated 2621990. According to para 10 of the counteraffidavit that in fact against the adverse entry made by the Deputy General Manager of the zone a representation/appeal lies to the Additional General Manager (Operation) but the representation was sent to the Joint General Manager who is not the competent authority. Accordingly, the petitioner''s representation was returned to him through the Deputy General Manager, East Zone. The board of Director of the Corporation in exercise of powers under Section 12 of the Road Transport Corporation Act 1950 had delegated the powers to the Managing Director vide resolution dated 201286 and the Managing Director in exercise of powers under Section 12 (2) delegated those powers to the joint Managing Director vide order dated 431989. The Managing in exercise of powers under Section 12 (2) of the Road Transport Corporation Act, 1950 further delegated the powers to the Additional General Manager (Operation) vide order dated 2381989. Thus the Additional General Manager (Corporation), UPSRTC Lucknow was competent to pass the order of compulsory retirement against the petitioner.
8. I have heard learned counsel for the parties. The petitioner was deployed in U.P. Govt. Roadways and by virtue of the said compulsory order dated 2621990 has legally been passed, the entire service character roll has been scrutinised by the Screening Committee and after careful consideration of the records subjective decisions of the authority respondent the petitioner has been compulsory retired. The compulsory retirement is not a punishment, the petitioner despite the fact has not availed the alternative remedy of filing the appeal before the Tribunal has come forward to avail the writ petition. On that point the writ petition is not maintainable. However, since the respondents have considered all the material available on records, therefore, there is no illegality or impropriety in the said impugned order challenged in the writ petition. Therefore, I do not invoke my extraordinary discretionary jurisdiction Article 226 of the Constitution. The writ petition is dismissed accordingly.
