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Gauhati High Court
Page No.# 1/29 vs The Food Corporation Of India And 3 Ors on 25 April, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/29
GAHC010207192023
2025:GAU-AS:5057
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5356/2023
GANESH PRASAD YADAV
S/O- D.P DHANGAR,
R/O- H.NO- 1277/1 B JHANDA CHOWK, JAIPRAKASH NAGAR, ADHAARTAL,
JABALPUR, MADHYA PRADESH-482004
VERSUS
THE FOOD CORPORATION OF INDIA AND 3 ORS
REP. BY ITS CHAIRMAN
16-20 BARAKHAMBA LANE, NEW DELHI- 110001.
2:THE CHAIRMAN
FOOD CORPORATION OF INDIA
16-20 BARAKHAMBA LANE
NEW DELHI- 110001.
3:THE MANAGING DIRECTOR
FOOD CORPORATION OF INDIA
16-20 BARAKHAMBA LANE
NEW DELHI- 110001.
4:THE EXECUTIVE DIRECTOR (NE)
FOOD CORPORATION OF INDIA
ZONAL OFFICE (NE)
GLP BUILDING
ULUBARI
G.S ROAD
GUWAHATI-07
ASSA
Advocate for the Petitioner : MR. K P PATHAK, MR ARINDAM BARUAH,MR. B DAS,MR B
CHOUDHURY
Page No.# 2/29
Advocate for the Respondent : SC, F C I,
BEFORE
HON’BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. K.P. Pathak, Senior Advocate.
: Mr. B. Choudhury, Advocate.
For the respondents : Mr. K.N. Choudhury, Senior Advocate.
: Mr. B.K. Singh, Advocate.
Date of hearing : 20.06.2024, 25.06.2024, 24.04.2025.
Date of judgment : 25.04.2025.
JUDGMENT AND ORDER
(CAV)
Heard Mr. K.P. Pathak, senior advocate, assisted by Mr. B.
Choudhury, learned counsel for the petitioner. Also heard Mr. K.N. Choudhury,
learned senior advocate, assisted by Mr. B.K. Singh, learned counsel for the
respondents.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner has prayed for (a) quashing of the impugned order dated
12.06.2023, passed by the Managing Director, Food Corporation of India
(respondent no.3), thereby compulsorily retiring the petitioner from service; (b)
to forbear from giving effect to the said order dated 12.06.2023; (c) for
quashing the order dated 14.08.2023, passed by the respondent no.3, thereby
rejecting the representation dated 21.06.2023, submitted by the petitioner; (d)
to forbear from giving effect to the said order dated 14.08.2023; and (e) to
direct the respondents to reinstate the petitioner in service and to regularize the
period between his compulsory retirement and reinstatement as dies non and to
Page No.# 3/29
treat the said period as spent on duty for all purposes.
Case of the petitioner:
3) The case of the petitioner, in brief, in the writ petition is that the
petitioner was appointed in Food Corporation of India (FCI for short) as Deputy
Manager (General) on 10.04.2000. In course of his service, he was transferred
from time to time and he was also promoted from time to time.
4) While serving in FCI, Regional Office, Bhopal, a discipline a
disciplinary proceeding was drawn up against the petitioner in respect of certain
irregularities while he was serving in Borivalli, Maharashtra and by order dated
25.04.2017, he was given punishment of reduction in pay scale by 2 (two)
stages for a period of one year. Against the said order, the petitioner had filed
an appeal and the Chairman, FCI (Respondent no.2), by an order dated
27.06.2019, his punishment was scaled down to pay scale being reduced by 1
(one) stage for a period of one year without cumulative effect.
5) Thereafter, by an order dated 06.11.2019, the petitioner was
promoted to the post of General Manager (General) and was posted at Zonal
Office (West), Mumbai and then he was posted at Zonal Office, Guwahati as
General Manager (General) and was also given additional charge of the General
Manager (R), FCI, Regional Office, Arunachal Pradesh. While serving as such,
the petitioner was served with the impugned order dated 12.06.2023, thereby
compulsorily retiring him from service by invoking Regulation 22(2) of the FCI
Staff Regulations, 1971 (hereinafter referred to as “FCI Staff Regulation” for
short) (as amended vide notification dated 02.06.2021).
6) The petitioner then submitted an appeal dated 21.06.2023 to
the Appellate Authority to withdraw the order dated 12.06.2023 and to reinstate
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him. However, the respondent no.3, by an order dated 14.08.2023, rejected the
petitioner’s said appeal. Hence, this writ petition.
Case of the respondents:
7) The stand of the respondents in their affidavit-in-opposition is
that the service conditions of the FCI employees are governed by the FCI Staff
Regulations, which has been framed under the provisions of section 45 of the
Food Corporations Act, 1964. Moreover, with previous sanction from the Central
Government, circulars, etc. are also issued from time to time. The provisions of
Regulation 22(2) provides for premature retirement of Category-I and II
employees after attaining the age of 50 years after giving him a notice of not
less than three months in writing or three months’ pay and allowances in lieu of
such notice, subject to entering into service before attaining the age of 35 years
and after he has attained the age of 50 years, and in any other case, after he
has attained the age of 55 years.
8) The Review Committee conducts periodical review of the
employees of FCI under Regulation 22(2) of the FCI Staff Regulation. The
matter relating to the petitioner was reviewed by the Review Committee by
following the guidelines contained under the said Regulation 22(2) of FCI Staff
Regulation, Department of Personnel and Training (DoPT for short) OM dated
28.08.2020 and paragraph-10 of the FCI Circular dated 09.07.2021 and
thereupon the Review Committee made its recommendation to the appropriate
authority after considering the entire service record of the petitioner, including
memos, show-cause notices, charge-sheets, penalties, Annual Performance
Appraisal Report (APAR’s for short) grading, remarks about integrity and general
reputation of the petitioner in the organization. Accordingly, the impugned
order dated 12.06.2021 was issued.
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9) The representation dated 21.06.2021, was forwarded to the
Representation Committee, which observed that on 6 (six) occasions, the
petitioner was issued memos/ show-cause notices/ charge-sheets indicating
various allegations of misconduct, out of which two charge-sheets were under
major penalty clause of Regulation 58 of the FCI Staff Regulation. Moreover, as
per the petitioner’s APAR’s assessment prior to 2009, he had earned grading of
fair/ good and his conduct and reputation was not good. Accordingly, the finding
of the Review Committee was held to be good by the Representation
Committee. It has been stated that the two orders dated 12.06.2023 and
14.08.2023, were passed by Managing Director of FCI, who is the appointing
authority and that in the order dated 14.08.2023, it has been mentioned that
the representation of the petitioner was examined by the Representation
Committee.
10) According to the respondents, the vigilance and administrative
profile of the petitioner reflects the following position: –
i. Complaint was made by staff of Satna Division alleging
corruption by petitioner and consequently vide order dated 24.08.2009,
the petitioner was transferred to Maharashtra Division.
ii. Charge-sheet dated 21.10.2010 was issued under major
penalty clause of the FCI Staff Regulation for negligence towards his
duties as Area Manager and failure to monitor Depot operation
efficiently and failure to keep control over subordinate staff.
iii. E-mail dated 05.05.2011 was sent by the General Manager
(Karnataka) to the Executive Director (South Zone), to transfer the
petitioner out of Karnataka, pointing out serious irregularities;
performance not upto the mark; serious allegations about doubtful
Page No.# 6/29integrity. Based on inputs, the petitioner was transferred out from
Karnataka Region to the Regional Office, Tamil Nadu. It was also
observed that the petitioner had not submitted his APAR for the said
period to his controlling officer and only part APAR of the year was
available in the record.
iv. Memorandum dated 08.08.2011 was issued to the
petitioner by the Central Bureau of Investigation, who had warned the
petitioner after investigating the case of irregularities in Satna Mandi
during Marketing Season 2009-10, amongst others, regarding non-
maintenance of records and loss of food grain.
v. The petitioner was served with a show-cause notice dated
14.03.2012, for alleged lapses for not lodging FIR against the HTC of
MPSWC and the truck driver. Accordingly, a warning dated
05/06.01.2012, was issued to the petitioner, who was then posted as
Area Manager, Sagar to be more careful in future.
vi. Memorandum dated 14.03.2012, was issued to the
petitioner, who was then posted as DGM (Region), Tamil Nadu, for
explaining the reasons for not attending the Zonal Office (South) in
spite of being available at Regional Office for discussing clarifications
sought for by the FCI HQ on SLC proposals in the meeting held on
27.12.2011.
vii. Charge-sheet dated 30.09/01.10.2015, was issued to the
petitioner, who was then posted as DGM (General), Bhopal, Madhya
Pradesh under minor penalty clause for irregularities committed
OMSS(D) in Madhya Pradesh. However, all the charges were dropped
vide order dated 18.01.2016.
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viii. Charge-sheet dated 03.02.2016, was issued to the
petitioner, then posted as Area Manager, Borivali, Maharashtra under
major penalty clause for irregularities in labour issues and abnormality
in payment of wages in Borivali. Punishment of reduction in pay scale
by 2 (two) stages for a period of 1 (one) year was imposed upon the
petitioner by providing that he will not earn increment and reduction
will have the effect of postponing future increments of his pay.
However, on appeal, vide order dated 27.06.2019, the penalty of
reduction in time scale of pay was modified by 1 (one) stage for a
period of 1 (one) year without cumulative effect.
ix. The APAR grading of the petitioner for the year 2004 was
graded as fair and the Reviewing Officer had also denied to accept him
fit for promotion as he neither had capability nor does he take interest
in completion of the assigned work in time even after issuance of
multiple memos and warnings. Nonetheless, his grading was up-graded
to good by the Reviewing Authority.
x. Similar comments are available in the APAR for the year
2006.
xi. In the APAR of 2008, the petitioner is reported as a non
performer by the Reporting Officer, but he was graded good.
xii. In the APAR of 2009 (December, 2009 to December,
2009), the petitioner was graded as good. However, the accepting
authority had remarked that the petitioner was not able to control the
operation at Borivali.
xiii. The below benchmark grading awarded to the petitioner
was accepted by him.
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xiv. The Committee had gone through all the APARs of the
petitioner, available in the record and observed that it is reflected from
the start of his service that the petitioner remained as average
performer and many times he was a casual worker with no initiative to
work.
xv. The Committee had observed that in the APAR of 2011, the
Reviewing Authority was not willing to accept the petitioner in
promotion capacity.
11) The FCI Headquarter, vide letter dated 16.01.2023, instructed
that it had become imminent to review all the serving officers of Category-I and
II, who had completed and/or completing 50 years of age as 30.06.2023. This is
projected to be in accordance with Rule 22(2) of the FCI Staff Regulation.
Accordingly, the review of 320 Category-I officers was conducted and 21
(twenty one) officers including the petitioner were prematurely retired from
service. In this regard, the respondents have placed reliance on paragraph nos.
7 and 10 of the FCI Circular No. EP-01-2021-24 dated 09.07.2021 to justify the
premature retirement of the petitioner.
Submissions, in brief, by the learned senior counsel for the petitioner:
12) The learned senior counsel for the petitioner had made his oral
submissions, followed by a written note of submission, which has been made a
part of the record. It was submitted that before an officer of FCI is prematurely
retired, the process has to pass through different committees such as Review
Committee, whose recommendation is required to be submitted to the
Appointing Authority i.e. Chairman- cum- Managing Director for his
consideration and approval. Thereafter, if an officer is compulsorily retired, the
aggrieved employee has a right to submit a representation before the
Page No.# 9/29Representation Committee, which would consist of members appointed in
accordance with Clause 8-B of the Circular dated 09.11.2022, issued under
Regulation-22(2) of the FCI Staff Regulation. It was submitted that there is a
third committee under Clause 9 of the said circular, called Internal Committee,
which is for assisting the Review Committee. Extensive submissions were made
in respect of various clauses of the Circular dated 09.11.2022.
13) It was further submitted that in the year 2019, from the post of
Deputy General Manager, the petitioner was promoted to the post of General
Manager. Accordingly, as per clause 10(iv) of the Circular dated 09.11.2022, the
petitioner could not have been prematurely retired on 12.06.2023, within 5
(five) years of being promoted. However, without considering the said aspect,
the representation submitted by the petitioner was rejected on 14.08.2023.
14) It was submitted that as regards the two other grounds available
for premature retirement under Clause-10 of the Circular dated 09.11.2022,
which relates to allegations that the petitioner was a person of doubtful
integrity, lack of fitness and competence, the petitioner had given a gist of
remarks appearing in his APAR in his representation dated 21.06.2023. It was
submitted that no adverse remarks appearing against the petitioner was
communicated to him. It has been submitted that the remarks in the petitioner’s
APAR have been extracted in paragraph 9 of the writ petition, which has not
been specifically denied by the respondents. However, in paragraph 30 of the
affidavit-in- opposition filed by the respondents through the Assistant General
Manager of FCI, a lowest officer in the grade of officers in FCI, it has been
stated that “… it was always observed that the petitioner worked in a
lackadaisical manner with lack of devotion and he always tried to shirk the
assigned responsibilities in one way or the other.” It has been submitted that the
Page No.# 10/29statement made in paragraph 30 of the affidavit-in-opposition is made by an
officer who is junior to the petitioner, which is verified to be true to his
knowledge and thus, those allegations are not based on any record.
15) It was submitted that it was the pleaded case of the petitioner
that as per circular dated 09.07.2022, the performance of the petitioner was
reviewed by the Review Committee in the year 2021, on attaining the age of 50
years on 29.01.2021, but then the Review Committee did not recommend to
compulsorily retire the petitioner. Thus, the case of the petitioner having been
considered by the Review Committee, could not have been taken-up in the year
2023, when there was no change of circumstances occurring after 2021 and it
could have been taken-up, only in public interest, and by strictly adhering to
Clause 7 of the FCI Circular dated 09.07.2021. Accordingly, it was submitted that
the respondents have failed to show any material before the Court that they had
exercised visual meticulousness, as envisaged vide the said circular.
16) It has been submitted that the petitioner was not given any
opportunity of a personal hearing either before the Review Committee or before
the Representation Committee. Accordingly, it is submitted that the principle of
natural justice was not complied with.
17) It was submitted that as per Clause 12 of the FCI Circular no.
EP-01-2021-24 dated 09.07.2021 provides that the recommendations of Review
Committee will be put up for consideration and approval for the Appointing
Authority in those cases, where it has been recommended to retire the
corporation employee permanently. In this regard, it is submitted that the
paragraph 9-C of the writ petition, the petitioner has stated that the Appointing
Authority for Category-1 posts is the Managing Director (respondent no.3) and
therefore, assuming that the Review Committee had recommended that he
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should be compulsorily retired, then the said recommendation had to be
approved by the Appointing Authority. However, the impugned order dated
12.06.2023, does not show that the Managing Director had approved the
recommendation of the Review Committee. It was submitted that by not
denying the statements made in paragraph 9-Cof the writ petition, the
respondents are deemed to have admitted those statements.
18) It was submitted that the entries made in the APAR of the
petitioner for his service period of the year 2000 to 2022 was exemplary and
unblemished for which he was promoted from the post of Assistant General
Manager to the post of Deputy General Manager and thereafter, in the year
2019, to the next higher post of General Manager (General). The performance
of the petitioner was reviewed by the Review Committee on 29.10.2021 on
attaining age of 50 years, which was as per clause 3.1.(a) of the circular and
the Review Committee did not recommend the name of the petitioner for
compulsory retirement. It is submitted that the statement in this regard is made
in paragraph 9-B of the writ petition has not been specifically denied by the
respondents. But, a general allegation of “incompetence” of the petitioner has
been made in paragraph 13 of the affidavit-in- opposition, which is sworn by an
officer of the cadre of AGM, and thus, lowest cadre of officer rank in FCI, which
is made on the basis of his personal knowledge and not borne out of record and
therefore, cannot be believed.
19) It is submitted that although in the affidavit-in- opposition, the
petitioner is projected to have doubtful integrity, but those allegations are not in
consonance with the directions contained in the Office Memorandum no.
21011/27/2015-Estt.(A-II) dated 11.02.2016, issued by the Department of
Personnel and Training (DoPT for short), Govt. of India.
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20) It has been submitted that in the case of Baikunth Nath Das &
Anr. v. Chief District Medical Officer, Baripada, (1992) (2) SCC 299 , it has been
held by the Supreme Court of India that compulsory retirement is not a
punishment, but it was further held that the Review Committee constituted for
the purpose has to consider the entire record of service before taking a decision
in the matter. It was also held that when a Government servant is promoted to a
higher post notwithstanding the adverse remarks, such remarks lose their sting,
moreso, if the promotion is based upon merit and not upon seniority.
21) Citing the case of Central Industrial Security Force v. HC (GD)
Om Prakash, (2022) 0 Supreme (SC) 113 , it is submitted that the Supreme
Court of India had held that the entire service record is to be taking into
consideration, which would include ACRs of the period prior to the promotion,
though the recent reports would carry their own weight.
22) By referring to the case of State of Gujarat v. Umedbhai M.
Patel, (2021) 3 SCC 314, it has been submitted that the Supreme Court of India
had deprecated the order of premature retirement, which is passed as a short
cut to avoid departmental proceedings and passed as a punitive measure.
23) It is submitted that in the case of Rajasthan State Road
Transport Corpn. v. Babu Lal Jangir, (2013) 0 Supreme SC 875 , it has been held
by the Supreme Court of India that if the order is passed with non-application of
mind or it suffers from arbitrariness, it would be liable to be interfered with. In
the said regard, the following case have also been cited, viz., (i) Captain
Promod Kumar Bajaj v. Union of India & Anr., 2023 SCC OnLine SC 234 , (ii)
Baldev Raj Chadha v. Union of India & Ors. (1980) 4 SCC 321 , (iii) Madhya
Pradesh State Cooperating Dairy Federation Ltd. & Anr. v. Rajnish Kumar
Jamindar & Ors., (2009) 15 SCC 221, and (iv) State of J&K & Ors. v. Narayan
Page No.# 13/29
Dutt, LPA No. 196/2018, decided by High Court of Jammu & Kashmir and
Ladakh on 04.08.2023.
24) In summing up, it was further submitted that there are several
other Grade-I officer who had suffered penalties and departmental proceedings
are also pending against them. However, in the exercise for compulsory
retirement, no action was taken against those officers whereas in respect of the
petitioner, after he was promoted to the post of General Manager in 2019, no
disciplinary proceeding is pending against him. It has been submitted that as a
Review Committee report was required to be considered before approval of the
Appointing Authority in terms of clause 12 of the hereinbefore referred circular,
the impugned order against the petitioner suffers from malice in law and malice
in fact. A further note of closing submission has been submitted by the learned
senior counsel for the petitioner, which is also made a part of the record.
Submissions, in brief, by the learned senior counsel for the respondents:
25) Per contra, the learned senior counsel for the respondents has
referred to the affidavit-in-opposition and sur-rejoinder affidavit filed by the
respondents and I has been submitted that the impugned order of compulsory
retirement of the petitioner is in accordance with the provisions of Regulation
22(2) of the FCI Staff Regulations, 1971 and it is further submitted that
moreover, the FCI has also issued a circular dated 09.07.2021 keeping in view
the amendment in Regulation 22(2) of the FCI Staff Regulations, 1971 vide
notification dated 02.06.2021 and the DoPT OM dated 28.08.2020 and
therefore, the respondents have the power and authority to carry out periodic
review of the employees of the FCI for strengthening of administration under
Regulation 22(2) of the FCI Staff Regulations, 1971. It was submitted that
merely because a review was conducted in respect of the petitioner in the year
Page No.# 14/292021 after attaining the age of 50 years, such previous exercise would not stand
as a bar for fresh exercise being conducted in respect of the petitioner.
26) It is submitted that the Review Committee considered the APAR
and vigilance reports in respect of the petitioner by following the guidelines
contained in (a) Regulation 22(2) of the FCI Staff Regulations, 1971, (b) DoPT
OM dated 28.08.2020, and (c) FCI Circular dated 09.07.2021. Thereafter, the
Review Committee had made the necessary recommendations in respect of the
petitioner to the appropriate authority and accordingly, order dated 12.06.2023
was issued by the Managing Director of FCI. It has been submitted that the
criteria laid down in paragraph 10 of the FCI circular dated 09.07.2021 was duly
considered and followed by the Review Committee and the entire service record
of the writ petitioner, including the memos, show cause notices, charge sheets,
penalties, APARs’ reading, remarks about integrity and the general reputation of
the petitioner in the organization were duly considered and taken into account
by the Review Committee.
27) It was submitted that after the impugned order was passed, the
representation dated 21.06.2023, submitted by the petitioner was forwarded to
the Representation Committee and the said Committee had observed that on six
occasions, the petitioner was given memos, show cause notices and charge-
sheets on various allegations of misconduct and that on two occasions the
petitioner was charge-sheeted under major penalties clause. It was submitted
that the service records of the petitioner clearly indicates that his conduct and
reputation was not up to the mark. In this regard, it is submitted that one has
to look into overall performance of the petitioner and that merely because
petitioner was promoted, those adverse marks do not get obliterated. It is
submitted that the authorities will also have to consider that even if a person
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does not contribute to the organization, he is unfit for the organization.
28) It has been submitted that it is not the case of the petitioner
that when he was promoted on 15.06.2011 to the post of DGM and on
31.10.2019, when he was promoted to the post of General Manager (General),
he was promoted on the basis of merit alone and not on the basis of seniority
cum fitness. Hence, it is submitted that there is no force in the projection made
by the petitioner that as he was promoted 5 (five) years prior to his compulsory
retirement, the impugned order was not sustainable.
29) It has been submitted that contrary to submission made by the
learned senior counsel for the petitioner, there is a specific response to
paragraph 9-C of the writ petition in paragraph-34 of the affidavit-in-opposition,
wherein it is stated that the impugned order was passed by the appointing
authority himself. It is further submitted that in the context of the impugned
order dated 12.06.2023 (Annexure-8) of the writ petition, it is specifically stated
that the said order has been passed by the Appointing Authority. Therefore, it is
apparent that the recommendation of the Review Committee to compulsory
retire the petitioner was placed before the Appointing Authority (respondent
no.3), who had passed the impugned order and therefore, in passing the
impugned order, it is unacceptable that the respondent no.3 had not approved
the recommendation made by the Review Committee.
30) It has been submitted that pursuant to order dated 30.05.2024,
his instructing counsel has produced the departmental records pertaining to the
petitioner on 20.06.2024, and the said record discloses that the Review
Committee had considered the entire service record of the petitioner.
31) It is also submitted that the foundational facts to support the
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allegation that the compulsory retirement of the petitioner was punitive, is not
pleaded in the writ petition.
32) Accordingly, it is submitted that the cases cited by the learned
senior counsel for the petitioner have application under the facts of the present
case.
Reasons and decision:
33) Considered the submissions made by the learned senior counsel
for the petitioner and the respondents. Perused the writ petition, affidavit-in-
opposition by the respondents, affidavit-in-reply by the petitioner, and sur-
rejoinder by the respondent and documents appended thereto. Also perused the
departmental records produced by the learned instructing counsel for the
petitioner.
34) On a perusal of the departmental records, it is seen that the
agenda note for the meeting of the Review Committee, scheduled to be held on
06.06.2023 at 10.30 AM reads as follows:
“Review of cases of CAT.I officers (Second time) under Regulation 22(2), working
in the corporation who had already attained the age of 50 years and having birth
year 1971, 1972 and 1973 (129 Officers).”
35) Thus, the respondent authorities have taken a conscious
decision to review cases of CAT-I Officers for the second time under Regulation
22(2), who had already attained the age of 50 years having birth year 1971,
1972 and 1973 (129 Officers). In the list of the officers, for whom
recommendations of review committee was solicited contained the name of the
petitioner, whose name appears at Sl. No.55 with his date of birth recorded as
29.10.1971 and his date of retirement noted alongside is 31.10.2031. The
record discloses that the Review Committee had considered all the APAR
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Grading of the petitioner since April, 2000 to December, 2021, out of which,
there was no APAR for the period October to December, 2009 containing
remark- “Less period no ACR”. Upon consideration of the entire vigilance and
administrative profile of the petitioner, it has been expressed in the minutes of
the meeting of the Review Committee held on 06.06.2023 and 07.06.2023, it is
mentioned inter alia that as per the opinion collected from his present and past
controlling officers and other officers in the organization, who have worked with
him, the general consensus was that the petitioner does not take any
responsibility and that is why he was never assigned any sensitive/independent
assignments, leaving a few occasions and it was observed that whenever he
was assigned the duties to head the Divisional Office, most of the time he got
involved in some or other irregularities or graded as weak performer in the
assigned duties and accordingly, opinion was expressed that there was
petitioner’s incompetence of heading senior management post, which requires
independent decision making. Opinion was also expressed that the petitioner
has always been observed to work in lackadaisical manner with lack of devotion
and tries to shirk the assigned responsibilities in one or the other way.
Accordingly, the Review Committee took note of the broad criteria for examining
these types of cases as indicated vide paragraph-10 of the FCI Circular dated
09.07.2021, which include the criteria that ” Govt. servants whose integrity is
doubtful, shall be retired”. The Review Committee has specifically recorded that
it had thoroughly examined the matter in light of available records and rule
provision and accordingly, found that as the conduct and reputation of the
petitioner establishes him of lacking in integrity, professionalism and seen as
bottleneck in the decision making. The Review Committee expressed its opinion
that the petitioner has completely failed to discharge his duties in a most
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efficient and transparent manner and it was further recorded that with an
officer, who cannot discharge his responsibilities with honestly and efficiently, his
continuance in service is detrimental to the public interest, especially,
considering the fact that the FCI has a responsibility under National Food
Security Act, 2013 towards supply of food grains to nearly 2/3rd population of
the Country. Accordingly, the Committee expressed its unanimous opinion that
continuation of the services of the petitioner is not in the interest of the
corporation and public interest in general and therefore, the petitioner deserves
to be retired from services of Food Corporation of India in terms of the
Regulation 22(2) of the FCI Staff Regulations, 1971.
36) The records reveal that minutes of the Meeting of the Review
Committee held on 06.06.2023 and 07.06.2023, was prepared, which was
followed by the passing of the impugned order dated 12.06.2023, by the
respondent no.3, to retire the petitioner w.e.f. 12.06.2023.
37) Thus, there is no material to presume that the recommendation
of the Review Committee was not placed before the Managing Director, FCI
(respondent no.3) and that without his approval, he had retired the petitioner.
Therefore, it must be deemed that in approval of the recommendation of the
minutes of the Review Committee, the respondent no.3 had passed the
impugned order dated 12.06.2023, to retire the petitioner from service.
38) The vigilance and administrative profile of the petitioner is
mentioned in paragraph-10 of this judgment and order. The nature of
allegations against the petitioner is found to support the stand of the
respondents that the overall performance of the petitioner is clouded by the
adverse remarks against him. Moreover, in light of the view expressed by the
Page No.# 19/29
Review Committee that the attitude of the petitioner was lackadaisical, it is
apparent that he has not contributed to the FCI, where he has rendered service.
39) The impugned order dated 12.06.2023, does not contain
anything to show that the said order was passed as a short-cut to avoid
disciplinary action against the petitioner. It does not contain any adverse
remarks or any sort of adverse imputation against the petitioner. The non-
mentioning in the said order dated 12.06.2023, that the respondent no.3 has
approved the recommendation of the Review Committee cannot be faulted with.
If the respondent no.3 would have mentioned in the order dated 12.06.2023
that he had approved the recommendation of the Review Committee, such a
remark might be read and/or construed to have the effect of exposing that the
petitioner was compulsorily retired as the Review Committee had made its
adverse recommendation against the petitioner. In that event, any reasonable
person reading the order dated 12.06.2023, is likely to take a presumption that
the continuance of the service of the petitioner in FCI was not found desirable.
Thus, by non-mentioning of approval of the recommendation of the Review
Committee, the respondent no. 3 is found to have made the order of
compulsory retirement of the respondent to be non-stigmatic. Therefore, merely
because it is not mentioned in the impugned order that the respondent no.3 had
approved the recommendation of the review committee to compulsory retire the
petitioner on attaining the age of 50 years, the absence of such a remark is not
found to vitiate the impugned retirement order of the petitioner dated
12.06.2023, which in fact, protects the petitioner from any stigma attached to
his retirement.
40) It is seen from the departmental records of the petitioner that
his APAR from 2000 to December, 2021 was duly considered by the Review
Page No.# 20/29
Committee; it had also considered the vigilance and administrative profile of the
petitioner; considered the email dated 05.11.2021 from the General Manager,
Karnataka to Executive Director (South) wherein, by referring to serious
irregularities, request was made for posting the petitioner out of Karnataka; and
also considered that the petitioner was awarded penalty of reduction of pay-
scale by 2 (two) stages for a period of 1 (one) year vide order dated
25.04.2017, which was reduced to reduction in the scale of pay by 1 (one) stage
for a period of 1 (one) year without cumulative effect vide appellate order dated
27.06.2019. Accordingly, on the basis of the departmental records, the Court is
inclined to hold that the entire service record of the petitioner was taken into
consideration by the Review Committee in its minutes of meeting dated
06.06.2023 and 07.06.2023. Accordingly, in the opinion of the Court, the Review
Committee has not acted contrary to (a) Regulation 22(2) of the FCI Staff
Regulations, 1971, (b) DoPT OM dated 28.08.2020, and (c) FCI Circular dated
09.07.2021. Resultantly, the recommendation of the Review Committee and the
order dated 12.06.2023, to retire the petitioner, is not found contrary to the law
laid down by the Supreme Court of India in the case of Baikuntha Nath Das
(supra) and Central Industrial Security Force (supra).
41) The learned senior counsel for the petitioner had urged that no
opportunity was granted to the petitioner for hearing before the Review
Committee and also before the Representation Committee and thus, the
petitioner’s right to natural justice was violated. In this regard, the petitioner
has failed to demonstrate that under the relevant Circular dated 09.07.2021 and
notifications relating to periodical review of FCI employees that an officer under
Category-I are entitled to be heard in course of the exercise to be undertaken
by the FCI authorities and its Review Committee as well as the Representation
Page No.# 21/29
Committee. Perhaps that is why the petitioner, in representation dated
21.06.2021, had not made a request for giving him an opportunity of a personal
hearing. In this regard, it would be relevant to quote the observations of the
Supreme Court of India in the case of Baikuntha Nath Das (supra), paragraph
34 thereof is quoted below:
“34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no
stigma nor any suggestion of misbehavior.
(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.
Interference is permissible only on the grounds mentioned in (iii) above. This
aspect has been discussed in paras 30 to 32 above.”
42) Thus, it is a trite law as per paragraph 34(iii) of the case of
Baikuntha Nath Das (supra), quoted above that principles of natural justice have
no place in the context of an order of compulsory retirement.
Page No.# 22/29
43) The case of Umedbhai M. Patel (supra), has distinguishable
facts. In the said case, the respondent therein had crossed the efficiency bar at
the age of 50 years and 55 years and then he was placed under suspension on
22.05.1986 and thus, it was held that the appellants had sufficient time to
complete the disciplinary enquiry against the respondent and therefore, when
the respondent had two years to retire and the Review Committee had not
recommended his name, it was held that the order of compulsory retirement
was passed under extraneous considerations. Therefore, the facts in the present
case are not similar. It is seen that the Circular dated 09.07.2021, referred
above, envisaged consideration of review of FCI employees that an officer under
Category-I for the second time and the Review Committee had recommended
the name of the petitioner for his compulsory retirement. Hence, the case of
Umedbhai M. Patel (supra), does not help the petitioner.
44) The learned senior counsel for the petitioner had submitted that
in paragraph 27 of the affidavit-in-opposition, the respondents have referred to
the departmental proceeding of 2008 and 2011, whereby the petitioner was
awarded minor penalty. However, subsequently, he was promoted to the post of
DGM, thus by citing paragraph 32 of the case of Ram Ekbal Sharma (supra), it
was submitted that the Court can lift the veil to find out whether the order is
based on misconduct of the government servant concerned or extraneous
purpose. In this regard, it may be stated that it is a trite law that for the
purpose of reviewing whether the service of the government employee is to be
retained or he should be compulsorily retired, his entire service record/ APARs is
required to be examined. In this regard, it is seen that in the case of Babu Lal
Jangir (supra), amongst others, the Supreme Court of India had clarified that
the after promotion, the adverse remarks against the employee would have no
Page No.# 23/29
relevance and can be treated as wiped off when the case of the government
employee is considered for further promotion, however, the washed off theory
will have no application when the case of the employee is being assessed to
determine whether he is to be retained in service or requires to be given
compulsory retirement. Paragraph 24 and 25 thereof is quoted below: –
“24. The principle of law which is clarified and stands crystallized after the judgment in
Pyare Mohan Lal v. State of Jharkhand and Ors.; 2010 (10) SCC 693 is that after the
promotion of an employee the adverse entries prior thereto would have no relevance
and can be treated as wiped off when the case of the government employee is to be
considered for further promotion. However, this ‘washed off theory’ will have no
application when case of an employee is being assessed to determine whether he is fit
to be retained in service or requires to be given compulsory retirement. The rationale
given is that since such an assessment is based on “entire service record”, there is no
question of not taking into consideration an earlier old adverse entries or record of the
old period. We may hasten to add that while such a record can be taken into
consideration, at the same time, the service record of the immediate past period will
have to be given due credence and weightage. For example, as against some very old
adverse entries where the immediate past record shows exemplary performance,
ignoring such a record of recent past and acting only on the basis of old adverse
entries, to retire a person will be a clear example of arbitrary exercise of power.
However, if old record pertains to integrity of a person then that may be sufficient to
justify the order of premature retirement of the government servant.
25. Having taken note of the correct principles which need to be applied, we can
safely conclude that the order of the High Court based solely on the judgment in the
case of Brij Mohan Singh Chopra was not correct. The High Court could not have set
aside the order merely on the ground that service record pertaining to the period
1978-90 being old and stale could not be taken into consideration at all. As per the law
laid down in the aforesaid judgments, it is clear that entire service record is relevant
for deciding as to whether the government servant needs to be eased out prematurely.
Of course, at the same time, subsequent record is also relevant, and immediate past
record, preceding the date on which decision is to be taken would be of more value,
qualitatively. What is to be examined is the “overall performance” on the basis of
“entire service record” to come to the conclusion as to whether the concerned
employee has become a deadwood and it is public interest to retire him compulsorily.
The Authority must consider and examine the overall effect of the entries of the officer
concerned and not an isolated entry, as it may well be in some cases that in spite of
Page No.# 24/29satisfactory performance, the Authority may desire to compulsorily retire an employee
in public interest, as in the opinion of the said authority, the post has to be manned by
a more efficient and dynamic person and if there is sufficient material on record to
show that the employee “rendered himself a liability to the institution”, there is no
occasion for the Court to interfere in the exercise of its limited power of judicial
review.”
45) In light of above, when the record relating to Review Committee
has been perused, it cannot be culled out that the recommendation to
compulsorily retire the petitioner is taken on extraneous circumstances. It may
be mentioned that in paragraph 35 above, the opinion of the Review Committee
has been discussed, by which the Committee had made a unanimous
recommendation that the continuation of the services of the petitioner is not in
the interest of the corporation and public interest in general and he deserves to
be retired from services of FCI in terms of the Regulation 22(2) of the FCI Staff
Regulations, 1971.Accordingly, it is seen that the case of Ram Ekbal Sharma
(supra), decided by the Supreme Court of India in the case of Narayan Dutt
(supra), decided by the Jammu & Kashmir and Ladakh High Court does not help
the petitioner.
46) The learned senior counsel for the petitioner had referred to the
decision of the Supreme Court of India in the case of Baldev Raj Chadha (supra)
to project that in the said case as there were no adverse remarks in the
confidential reports of the appellant therein for the years 1971-72, 1972-73,
1973-74, 1974-75 and 1975-76 till the date of his retirement from service on
27.08.1975, it was held that no adverse entries at least for five years
immediately before compulsory retirement, appeal was allowed and the order of
compulsory retirement was quashed. Accordingly, it is submitted that even in
the present case in hand, there were no adverse entry regarding the petitioner
integrity in his APARs of last five years before the order dated 21.06.2023 was
Page No.# 25/29
passed and therefore, it was submitted that in light of the settled decision, the
order of compulsory retirement be set aside. On facts, the present case is found
to be different from the fact of the case of Baldev Raj Chadha (supra). In
paragraph 11 thereof it has been mentioned to the effect that the Review
Committee reviewed the several records of the appellant and found adverse
entries in various confidential reports, and inter alia, held that the appellant was
unable to perform his duty efficiently and effectively in the post held by him and
recommended compulsory retirement under FR 56(j)(i). It is reiterated that in
paragraph 35 above, the considerations on which the Review Committee had
given its recommendation has been mentioned. Therefore, the recommendation
to retire the petitioner under Regulation 22(2) of the FCI Staff Regulations, 1971
is not based merely on the earlier adverse entries in the petitioner’s APAR.
Therefore, the case of Baldev Raj Chadha (supra) does not come to the aid of
the petitioner.
47) The learned senior counsel for the petitioner has referred to the
case of Rajnish Kumar Jamindar (supra). As per the facts of the said case, in
furtherance of Regulation 13 of the M.P. State Cooperative Dairy Federation Ltd.
Employees Recruitment, Classification and Conditions of Service Regulations,
1985, Scrutiny Committee and Review Committee were constituted for the
purpose of finding out how many employees can be compulsorily retired in
terms thereon. However, in view of the fact that the appellant Federation was
found to be dominated and controlled by the Government administratively and
functionally. It was held that the appellant Federation was a State as per Article
12 of the Constitution of India and accordingly, it was held that the Federation
had adopted the rules and circulars made or issued by the State Government
and that the Federation itself having formulated the criteria required to be
Page No.# 26/29
applied for passing orders of compulsory retirement, was held to be bound
thereby. Under those background facts, the Supreme Court of India had referred
to the finding by the learned Single Judge noticed that the Regulations were
amended in conformity with the Government circulars and thus, as 16
employees has the average grading being “Good”, it was held that their services
could not have dispensed with.
48) It further appears from the case of Rajnish Kumar Jamindar
(supra), that although in many cases ACRs were not available but an attempt
had been made to grant “Average” on the basis of the year and it was also
noticed that although the Scrutiny Committee was required to lay an emphasis
on the grading of last five years, there was no justification why the last two
years’ grading had not been taken into consideration. On those grounds, the
interference of the High Court in respect of the order of compulsory retirement
did not find favour of the Supreme Court of India and the appeals by the
Federation were dismissed. Thus, the facts of the present case are
distinguishable and therefore, the said cited case does not find to help the
petitioner.
49) The learned senior counsel for the petitioner has cited the case of
Captain Pramod Kumar Bajaj (supra) to bring on the point that the Court has
the power to peers the smoke screen to ascertain whether the order of
compulsory retirement is punitive in nature and was passed to short circuit the
disciplinary proceeding and to ensure his immediate removal. As per the facts of
the case, the Supreme Court of India found that the order of compulsory
retirement was passed on 27.09.2019 whereas the appellant was to
superannuate in ordinary course in January, 2020 and in the said context when
the authorities were found to grade the appellant as outstanding till July 2019
Page No.# 27/29
and had assessed his integrity as “beyond doubt”, the order of compulsory
retirement was interfered with. Moreover, in the background facts as stated in
paragraph 2 to 7 of the said judgment, the petitioner had approached the
Tribunal against an adverse Intelligence Bureau report, which was interfered
with and the writ petitions as well as SLP by the respondents were dismissed.
Thereafter, vigilance clearance of the appellant granted on 21.01.2018 was
withheld, the operation of which was ordered not to implead the consideration
for appointment to the post of Member ITAT followed by another impugned
order that withholding of the vigilance clearance would not come in the way of
his appointment. Thereafter, name of the appellant was placed in the “Agreed
List”, which is a list of Gazetted Officer of suspect integrity prepared by the
Department. Thereupon, the SLP filed by the respondent before the Supreme
Court of India against impugned relief granted by the Tribunal, confirmed by the
High Court was dismissed. The appellants proceedings before the tribunal of
placing his name in the “suspect list” was allowed and decision to withhold
vigilance clearance was interfered with and the direction to appoint the
petitioner to the post of Member, ITAT was not complied with and in the writ
petition filed by the respondent before the High Court, no interim order was
passed to stay the judgment dated 06.03.2019 passed by the Tribunal.
Moreover, non-compliance of the High Court’s order dated 30.05.2017, contempt
petition was filed and by order dated 30.08.2019, the High Court permitted
impleadment of the Chairman of the CBDT in the contempt petition was allowed
and notice was issued to show cause as to why he should not be punished for
willful disobedience. Similar notices were issued by the Tribunal on two
contempt petitions filed by the appellant for non-compliance of order dated
30.05.2017 and 06.03.2019. Thereafter, charge-sheet in a disciplinary
Page No.# 28/29
proceeding was issued against the appellant on 17.06.2019.In July 2019, a DPC
was convened by the UPSC to consider promoting the appellant to the post of
Principal Commissioner, but due to pending disciplinary proceeding, decision in
his respect was placed in seal cover. Thereafter, in a writ petition filed by the
petitioner against the memorandum of charges, the High Court had granted stay
order in his favour. This was followed by the action of the respondent to
compulsorily retire the appellant on 27.09.2019. Under such factual
backgrounds, the judgment in the case of case of Rajnish Kumar Jamindar
(supra), was passed by the Supreme Court of India, the facts of which is
distinguishable from the facts of the present case.
50) Therefore, in light of the discussions above, the Court is of the
considered opinion that the respondent authorities being the Review Committee
is found to have taken into consideration all the relevant facts in impleading the
entire service records of the appellant and thereafter, recommended the
petitioner for his retirement. Thus, there are no good grounds for the Court to
interfere with the said recommendation. In light of the decisions cited by the
learned senior counsel for the appellant, the Court has examined the records so
as to see whether by lifting the veil it can be found that the order to compulsory
retirement of the petitioner is for public purpose or as a short cut to circumvent
or avoid disciplinary proceeding. The same is answered in the negative and
against the petitioner.
51) Resultantly, the impugned order dated 21.06.2023, passed by the
respondent no. 3 to superannuate the petitioner is not found to be vitiated in
any manner.
52) Consequently, the order dated 14.08.2023 by the respondent
no.3, thereby communicating to the petitioner that the representation against
Page No.# 29/29
the order dated 21.06.2023 had been examined by the Representation
Committee and that on perusal of the representation of the petitioner and the
Representation Committee report, the respondent no.3 had rejected the
representation is also not found liable to be interfered with. It may be
mentioned that the records of the FCI reveals that the Representation
Committee to review the representation submitted by the petitioner had held its
meeting on 26.07.2023, wherein the said Committee took note that on six
occasions the petitioner was given memo/ SCN/ charge-sheets indicating various
relations of misconduct and that he was charge-sheeted on major penalties on
two occasions that his APARs prior to 2009 petitioner had earned fair/ good
grading. Moreover, the Committee had also considered that the records indicate
that the petitioner’s conduct and reputation was not up to the mark and
accordingly, the finding of the Review Committee was stated to hold good.
53) Resultantly, in light of the discussions above, this writ petition fails
and the same is dismissed.
54) Under the circumstances, the parties are left to bear their own
cost.
55) The records of the FCI which was produced by the learned
standing counsel for the FCI, being photocopies, are retained on record.
JUDGE
Comparing Assistant
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