OM PRAKASH ASATIversusSTATE OF U.P. & ORS.

                        [2012] 1 S.C.R. 246

A                      OM PRAKASH ASATI
                                  v.
                     STATE OF U.P. & ORS.
      (Special Leave Petition (C) Nos. 13896-13897 of 2008)

                        JANUARY 13, 2012
B
       [ASOK KUMAR GANGULY AND JAGDISH SINGH
                    KHEHAR, JJ.]

        Service law: Retirement - Pre-mature retirement from
C service - Jal Nigam adopted criterion for screening the claim
  of employees for continuation of service - Order of premature
  retirement against several employees including petitioner -
  The c1iterion adopted by Jal Nigam set aside by the High
  Court and the said decision attained finality - Whether setting
D aside of the criterion adopted by Jal Nigam would ipso facto
  result in the negation of the impugned order by which the
  petitioner was prematurely retired from service - Held: The
  order passed by the Jal Nigam, prematurely retiring the
  petitioner from its employment, cannot be set aside merely
E 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
F Committee - The petitioner was punished 3 times in the
  preceding 4 years - Besides the gradual deterioration in his
  career-graph noticeable f.·om the last 7 years of his service,
  4 annual reports assessed the work and cc;mduct of the
  petitioner as "average" - The service record of the petitioner
G was objectively evaluated - Thus the passing of the impugned
  order cannot be described as arbitrary or unfair in any manner.
       The petitioner was appointed as Assistant Engineer,
  in the Local Self Engineering Department of the State of
  Uttar Pradesh on 3.3.1974. In 1975, the Uttar Pradesh
H                            246
  OM PRAKASH ASATI v. STATE OF U.P. & ORS.               247

Water Supply and Sewerage Act was enacted. The said             A
enactment resulted in the creation of the Uttar Pradesh
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,        B
the petitioner was promoted to the post of Executive
Engineer. On his attaining the age of 50 years in January
2001, his claim for retention in service was placed before
a Screening Con:imittee. A departmental enquiry was
pending against the petitioner. The Screening Committee         c
found the petitioner fit to continue in service.

     By orders dated 1.9.2005, several employees of the
Jal Nigam, including the petitioner, were prematurely
retired from service. The petitioner filed a writ petition on
the ground that the criterions adopted by Jal Nigam for         D
screening the claim of the employees of the Jal Nigam
were illegal and in complete derogation of Fundamental
Rule 56(c). The petitioner relied upon the two decisions
of the High Court whereby the criterions adopted by the
Jal Nigam in retiring its empl,yees under Fundamental           E
Rule 56(c) were held illegal. The said decisions of the High
Court had attained finality. The High Court dismissed the
writ petition and upheld the order of premature
retirement. The instant special leave petitions were filed
challenging the order of the High Court.                        F

    Dismissing the special leave petitions, the Court
     HELD: 1. In the two judgments rendered by the High
Court which were relied upon by the petitioner, it was
held, that the criterion adopted by the Screening               G
Committee for prematurely retiring the employees of the
Jal Nigam was illegal and riot in consonance with law. The
validity of the criterion adopted by the Jal Nigam for
prematurely retiring its employees .is a pure question of
                                                                H
    248     SUPREME COURT REPORTS           [2012) 1 S.C.R.


A law. The same having attained finality against the
  respondents, is liable to be respectfully adhered to. Once
  a challenge raised at the hands of the respondents to the
  judgments relied upon by the petitioner remained futile
  before this Court, the same should have been accepted
B without any further protestation. The contention for the
  respondents that the criterion adopted by the Jal Nigam
  was enforceable against the petitioner is rejected. [Paras
  5, 6, 8] [252-F; 254-G-H; 255-A]

C      2. 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)
  The impugned order dated 1.9.2 005 passed by the Jal
  Nigam, prematurely retiring the petitioner from its
D 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
E sustainable on the basis of the record taken into
  consideration by the Screening Committee. The entries
  in the Confidential Reports 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,
F 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
G 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
H
  OM PRAKASH ASATI v. STATE OF U.P. & ORS.               249


years, the work and conduct of the petitioner was                A
evaluated as "satisfactory". 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. The claim of the petitioner was
considered by the Screening Committee on the basis of            B
the annual entries in his service record and the
punishments suffered by him during the recent past.
[paras 9, 12] [255-B-H; 256-A-C; E-H; 257-A-C; 258-C]

     3. Besides the gradual deterioration in his career-         C
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                    D
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 supervision by the petitioner which           E
resulted in huge financial loss by way of compensation
which had to be paid to the families of the deceased
labourers. Based on the said, it would not be incorrect
to conclude, that there was a gradual deterioration in the
overall performance of the petitioner. In the said view of       F
the matter, it is not possible to find fault with the impugned
order of premature retirement dated 1.9.2005. 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              G
deliberations adopted by the Jal Nigam while passing the
impugned order dated 1.9.2005 are, therefore, not liable
to be interfered with. The impugned orders dated
27 .3.2006 and 19. 7 .2006 passed by the High Court,
                                                                 H
    250        SUPREME COURT REPORTS                   (2012] 1 S.C.R.


A upholding the order dated 1.9.2005, were fully justified
  and call for no interference. [para 12, 13] [259-0-H; 260-
  A-B]

      CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
B 13896-13897 of 2008.

        From the Judgment & Order dated 3.5.2006 of the High
    Court of Allahabad in Civil Misc. Writ Petition No. 64396 of
    2005 and Order dated 29.2.2008 in Review Petition No.
    144184 of 2006.
c
          B.S. Patil, Nikhil Majithia, Vishwajit Singh for the Petitioner.

        Pramod Swarup, Amee! Singh, Gunnam Venkateswara
    Rao, Pradeep Misra, Suraj Singh for the Respondents.
D         The Judgment of the Court was delivered by

       JAGDISH SINGH KHEHAR, J. 1. The petitioner herein,
  having qualified the 6.E. examination, came to be appointed
  as Assistant Engineer, in the Local Self Engineering
E 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
F 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.

G        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
H
   OM PRAKASH ASATI v. STATE OF U.P. & ORS.                    251
         [JAGDISH SINGH KHEHAR, J.J
employment of the Jal Nigam beyond the age of 50 years. The            A
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        B
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       C
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.
                                                                       D
     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 tll~ retirement of the petitioner had been       E
ordered, in exercise of powers emerging from 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         F
    (a) or clause (b), the appointing authority may, at any time
    by notice to any Government servant (whether permanent
    or temporarjt), 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                 G
    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            H
    252      SUPREME COUR·1· REPORTS             [2012] 1 S.C.R.


A 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
B 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
C Committee also postulated, that an employee who had been
  awarded a punishment of recovery, as also, an employee who
   had deposited any amcunt towards recovery, as a result of
  some faulUmistake committed by him in the discharge of his
  duties, would be a valid ground for the employee to be
o prematurely retired. It is also the contention of the learned
  cou11sel 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
E 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
F 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
G 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
H Agrawal vs. State of U.P. and Ors. (Writ Petition No.1888 (S/
   OM PRAKASH ASATI v. STATE OF U.P. & ORS.                  253
         [JAGDISH SINGH KHEHAR, J.]
B) of 2005, decided on 27.3.2006), as well as, on another            A
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   B
the impugned order against the petitioner (in the instant case)
had been considered by the Division Bench which decided the
aforesaid two cases, and the same had been set aside as
being unsustainable in law. lt is also brought to our notice by
the learned counsel for the petitioner, that the orders dated        C
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      D
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,     E
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 F
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 G
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 H
    254       SUPREME COURT REPORTS                [2012] 1 S.C.R.


A 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
B 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
C 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
0 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
E (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 Scr~ening 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
F 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
G 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
H remained futile before this Court, the same should have been
    OM PRAKASH. ASATI v. STATE OF U.P. & ORS.                 255
          [JAGDISH SINGH KHEHAR, J.]
 accepted without any further protestation. We, therefore, hereby     A
 reject the contention advanced at the hands of the learned
 counsel for the respondents that the C':'1terion adopted by the
 Jal Nigam was enforceable against the petitioner herein.

        9. The question which still arises for consideration is,      B
  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       c
  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 into consideration
  by the Screening Committee. According to the learned counsel
                                                                      0
  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      E
 (Lucknow Bench) in Writ Petition No.1888 (SIB) 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        F
 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         G
 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
                                                                      H
    256       SUPREME COURT REPORTS                [2012] 1 S.C.R.


A 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
B 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 impygned order is sustainable
  on the basis of the record taken into consideration by the
c Screening Commi~e.
        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
0
  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
E 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
F 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
G 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 "excellenr. 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
H
   OM PRAKASH ASATI v. ST.ATE OF U.P. & ORS.                257
         [JAGDISH SINGH KHEHAR, J.]
deterioration from "excellent" and "very good" to "satisfactory". A
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 B
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 C
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
                                                                    0
    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       E
    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 L.:alitpur and used to come from
    Jhansi which is against the Rules. Further it has been F
    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 G
    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            H
    258      SUPREME COURT REPORTS                 [2012) 1 S.C.R.

A       relevant documents it has been found that all the charges
        against him is proved regarding the incident at Kanpur
        w~ile 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
B       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)".

c         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
D 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
E 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
F and mis-utilization of funds, lack of administrative control; and
  death of 6 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 ori the aforesaid, it would not be
G 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
H
   OM PRAKASH ASATI v. STATE OF U.P. & ORS.              259
         [JAGDISH SINGH KHEHAR, J.]
was objectively evaluated. Thus viewed, the passing of the      A
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.
                                                                B
     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.                                           c
D.G.                                       SLPs dismissed.