“REPORTABLE”

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.  

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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