Shirish P. Shah (Dr.) vs Municipal Corporation Of Greater ...
2002 Latest Caselaw 662 Bom

JUDGMENT

R.J. Kochar, J.

1. The petitioner is seeking twin reliefs in the present petition. He has challenged the order dated 25-4-1994 terminating his services as Hon. Medical Officer of the respondent No. 1 Corporation. At the same time he is also seeking to challenge the appointment of respondent No. 6 as the Head of the Department of Chest Medicine at Nair Hospital. According to him, he was unlawfully terminated from the post of Head of the Department which he held as the Acting Head and that the respondent No. 6 was being appointed in his place though she was not qualified and eligible to be appointed for that post.

2. It appears that initially the petitioner had filed two separate petitions for the aforesaid two independent reliefs. Subsequently it appears that as suggested by this Court (Kapadia, J.) the companion Petition No. 2630 of 1991 wherein he had challenged the appointment of the respondent No. 6 as the Head of the Department in his place was withdrawn and the contentions and prayers made therein were allowed to be incorporated by way of amendment in the present petition. That is how the present composite petition seeks the aforesaid twin reliefs.

3. It would be convenient to decide first the legality and validity of the impugned order of termination of the petitioner dated 25-4-1994. In case the impugned order is held to be legal, proper, valid and justified it would be unnecessary to decide the question of legality and validity of the appointment of the respondent No. 6 as the Head of the Department and such challenge would not survive, though however I have considered the merits of the challenge as both the sides have made submissions on that point also.

4. The petitioner passed in April 1981 M.D. Examination from Bombay University in Chest Medicine and he got attached to the K.E.M. Hospital as Lecturer/Tutor. The petitioner continued as Hon. Assistant Professor from 1984 to 1990 at regular intervals of three years as prescribed under Rule 9 governing the working conditions of Hon. Medical Officers. It further appears that he was appointed as acting Head of Respiratory Medicine Department with effect from 10-1-1990 in place of Dr. Mahashur who was appointed in the K.E.M. Hospital. The appointment of the petitioner was until getting another suitable candidate selected from M.P.S.C. for the post of Professor of Chest Medicine. Meanwhile there was another development of appointment of Dr. Meisheri as the Reader in Chest and Medicine but the said appointment was revoked by an order dated 25-5-1990 as the same was objected by the petitioner as the said appointee was allegedly not qualified and the petitioner was restored as the acting Head of the Department. Other details in respect of the challenge to the appointment of respondent No. 6 are not given as they are not relevant for the purpose of deciding the issue of legality and validity of the order of termination of the petitioner.

5. Shri Shah, the learned Counsel for the petitioner has mentioned the important developments in the career of the petitioner. Amongst others he pointed out that the petitioner was recognized as a Teacher by the Bombay University and that he was also appointed as Examiner in 1993. The petitioner's appointment was renewed from time to time as his work and conduct was satisfied. On 25-5-1993 he was enquired whether he would continue in the said post of Hon. Assistant Professor upto June 1995 and petitioner had given such consent on 7-6-1993. On 12-4-1994 the petitioner was appointed as a Member of the Medical Board of the B.E.S.T. Undertaking of the respondent No. 1 Corporation for one year from 1-4-1994 to 31-3-1995. Shri Shah has emphasised these two events to stress the point that till 12-4-1994 there was no grievance against him and against his work but he was discontinued abruptly with effect from 25-4-1994 without any rhyme or reason. According to Shri Shah the petitioner was entitled to continue under Rule 9 as the acting Head of the Department till his superannuation as he had held that post for more than three years and no suitable candidate was selected by the M.P.S.C. According to Shri Shah, the petitioner was entitled to continue till his age of superannuation and that he could not be removed from service except by way of disciplinary proceedings.

6. Shri Shah challenged the order of termination being illegal, improper, unjustified and mala fide. Under Rule 9 his client was entitled to continue till the age of superannuation and he could not be discontinued. Shri Shah has further pointed out that his Confidential Record was good and his reporting officer had given remarks that the petitioner was fit to continue and that his services were renewed from time to time. He further pointed out that he had not received any adverse remarks after 16-4-1994 and therefore, he had no opportunity to make any representation against adverse remarks, if any. Shri Shah has also pointed out that he had filed the self assessment form on 16-4-1994 and that the Review Committee could not have met upto 25-4-1994. Shri Shah has, therefore, challenged the impugned order dated 25-4-1994 as totally arbitrary, mala fide and amounting to high handedness on the part of the respondents 1 and 2. According to Shri Shah, the petitioner was discontinued for extraneous reasons to accommodate the favoured candidate respondent No. 6 though she was not eligible or qualified to hold the post of Head of the Department as she was not a Professor while a Professor alone was eligible to become the head of the department. According to Shri Shah, the respondent No. 6 was being appointed in breach of the Rules and that though there was no post of reader in the Nair Hospital she applied for the said post, the post of Reader was specially created to accommodate her. According to Shri Shah, the petitioner had put in meritorious service and that he was much senior to the respondent No. 6 and had experience from 1981 in the field. According to Shri Shah, grave and gross injustice was done to the petitioner only to accommodate the respondent No. 6.

7. Shri Setalwad, the learned Counsel for the respondent Nos. 1 to 5, submits that Rule 9 cannot be read in the manner in which the petitioner wants us to read that he should be continued till the age of his superannuation as the acting head of the department and that no one else could be appointed during such a long span of his service even when eligible and qualified candidates would be selected in accordance with law. Shri Setalwad has also emphasised the fact that the petitioner was not discontinued on the basis of the Confidential Record for the year 1993-94 and the same was not considered at all. The decision was taken by the Review Committee in routine to consider whether the petitioner could be continued or not in service on the basis of the Confidential Record for the year from 1988 to 1993. Shri Setalwad has pointed out that the Review Committee had considered the Confidential Record of the petitioner for the period from 1988 to 1993 and opined that he was not fit for continuation of further 3 years tenure from 1-7-1993 to 30-6-1996. The said Review Committee comprises of High ranking officers viz. three Deans and the Dy. Municipal Commissioner and the Assistant Municipal Commissioner and the Review Committee was headed by the Municipal Commissioner as Chairman of the Committee. Shri Setalwad has taken me through the Confidential Record of the petitioner of each year written by the different authorities. He pointed out that his work was average and that he was unable to get the amount of work done by the subordinates though his relations and (with) colleagues were satisfactory and that his general intelligence was good. He did not however show any special technical skill and that there were no special attitudes and that he definitely lacked administrative ability including judgment, initiative and drive. It was observed that he was not fit for promotion as he was not willing to show more readiness to guide junior staff and show mere administrative ability. Shri Setalwad also pointed out from the record that the petitioner took little interest in developing the department or departmental research project and that his involvement was little in the departmental activities. Shri Shah has also pointed out that all the adverse remarks were communicated to him and his representations were considered. From the entire confidential record Shri Setalwad emphasised that almost all the years record contained continuously a remark that "he must improve in every respect". The following adverse remark appeared in the confidential history sheet for the year 1992-93.

"He cannot supervise the subordinates. Bronchoscopy was performed on wrong patient by his residents when memo was issued. He kept in arguing through letters instead of taking residents to task. He is in habit of making long baseless correspondence."

The aforesaid and the other adverse remarks were confirmed by the reviewing officer after considering the representations submitted by the petitioner. The Confidential History Sheet for the year of 1993-94 revealed that the reporting authority passed the remarks to the effect that the petitioner was not reliable and that he could not work satisfactorily and that he did not attend duties in time and that his general assessment regarding his relations with the public were unsatisfactory and that his work was average, unsatisfactory and his relations with his colleague and public were not cordial and he was assessed by and large average and it was opined that he was unfit as there was no improvement and was very irregular in attending the duties. In the Confidential Sheet dated 22-10-1993 the B.M.C. has observed that the petitioner's performance during the last six years was far from satisfactory. It is further observed as under:

"The adverse remarks appearing in his C.H. Sheets for the period 1991, 1992 and 1993 have been confirmed by the authority concerned and the tenure of Dr. S.P. Shah is expired on 30-6-1993 and further continuation of the tenure is required to be decided taking into consideration the C.H. Sheets as per Rules.

The accompanying statement in his favour is submitted for reviewing by Committee consisting of N.C./Addl. N.C./ D.M.C. in charge of hospitals and dean of the teaching institutions. On assessing the performance the decision will be taken as to whether the tenure of Dr. S.P. Shah is to be renewed for further period of 3 years from 1-7-1993 to 30-6-1996 or otherwise."

The Additional Municipal Commissioner put her remark that she was not inclined to recommend his continuation. Shri Setalwad extensively referred to the annual confidential history sheets as enclosed with the affidavit in reply dated 18-5-1994. According to Shri Setalwad the termination or discontinuation of the petitioner was based on the report or recommendation of the Review Committee which had considered the entire confidential record of the petitioner from 1988 to 1993 and had recommended that the petitioner should not be continued any more. Shri Setalwad pointed out that though the decision was taken early there was delay in taking final decision as there were number of officers or tables involved before the final decision was taken. He also replied to the submission of Shri Shah that the petitioner was appointed on the Medical Board of B.E.S.T. undertaking a little before and he was asked he would like to continue. Shri Setalwad pointed out that these are the regular routine events which take place. Shri Setalwad further pointed out that the very fact he was asked whether he would like to continue and the fact that he was appointed on the panel of the Medical Board of the B.E.S.T. would show that the administration had no malice or illwill against the petitioner. The administration had no say in the matter of the report of the Review Committee which was constituted independently in accordance with the Rules. The Review Committee considered the entire history sheet of the petitioner and decided not to recommend continuation of the petitioner in service. Shri Setalwad pointed out that this decision was taken bona fide and there was no illegality therein. Shri Setalwad refuted the allegation of mala fides and extraneous considerations as alleged by the learned Counsel for the petitioner. Shri Setalwad pointed out that the question of appointment of respondent No. 6 was entirely different and had nothing to do with the discontinuation which depended on the recommendation of the Review Committee. Finally Shri Setalwad submitted that this Court under Article 226 of the Constitution of India may not interfere with the decision of the respondent No. 1 to terminate and to discontinue the petitioner from the service of the Corporation. He gave great emphasis on the fact that the petitioner was not an eligible and qualified to head the department as he was only part time Assistant Professor and not even a Professor while the respondent No. 6 was fully eligible and qualified to become the head of the department. He strongly refuted the allegations of mala fides on the ground that merely because the petitioner was not continued as the acting head of the department and merely because respondent No. 6 who was selected in regular course in accordance with law was to be appointed as the head of the department. He also refuted the allegation of Shri Shah for the petitioner that no meeting of Review Committee was actually held on 19-4-1994 and that the decision was taken by circulation. He positively asserted that the Review Committee meeting was held on 19-4-1994 and the case of the petitioner was considered by the Committee which did not favour continuation of the petitioner and this Court should not interfere with the decision of the respondent No. 1 Corporation bona fide arrived on the basis of the material on record.

8. In reply Shri Dhond for the respondent No. 6 pointed out that the case of the petitioner that he was entitled to get the benefit of Rule 3-A was totally fallacious. He pointed out that vacancy of the head of the department arose on 1-1-1990 and the process of filling up of the vacancy was started on 12-1-1991. Meanwhile as a stop gap arrangement the petitioner was appointed as the acting head of the department. No sooner the process to fill up the said post was started the petitioner protested by his letter dated 12-1-1991 and he filed a writ petition on 19-8-1991 before this Court and he succeeded in getting an interim order on 21-8-1991 restraining the Corporation from appointing respondent No. 6 to fill up the said post of the head of the department. Shri Dhond pointed out that the vacancy as contemplated under Rule 3(a) continued involuntarily under the orders of the Court from 21-8-1991. In the absence of restraining orders the said vacancy would have been filled up in regular course within a period of three years. In such circumstances it cannot be said that the petitioner should be given the benefit of Rule 3(a) as it was at the instance of the petitioner the said post continued to be vacant for a period of three years and the Corporation did not keep the said post vacant voluntarily. Shri Dhond further pointed out that by the passage of time the respondent No. 6 has become Professor on 9-4-1996 and she has now six years standing as Professor and there is no one else who can be appointed as the head of the department, certainly not the petitioner who was only a part time Assistant Professor not even an Associate Professor while the respondent No. 6 was a full time Professor. Shri Dhond further questioned the interpretation put by Shri Shah on Rule 3(a); according to him, the said Rule cannot be read to endow the post of head of the department on the petitioner for a period of 12 or more years till he would reach the age of superannuation. He submitted that if the Rule is reasonably construed and read it would mean that the continuation of the incumbent cannot be only for days or months but it has to be at a stretch of three years to maintain the certainty of tenure in the mind of the incumbent. Shri Dhond further pointed out that under the Medical Council of India Rules full timers are to be appointed and not the part time teachers. The petitioner was a part time practising physician while the respondent No. 6 was a non practicing full timer eligible for appointment as Professor and as the head of the department under the M.C.I. Rules. The petitioner continued to be Asstt. Professor as he never applied for the post of Associate Professor and he has finally given up his challenge to the promotion of the respondent No. 6 as the Associate Professor. Shri Dhond prayed for dismissal of the petition.

9. Shri Shah, at the last moment raised a point that under Rule 5(f) the case of the dispute in respect of continuation of an Hon. Teacher was to be referred to three arbitrators. Shri Shah as the last attempt submitted that the discontinuation of his client was in violation of the said Rules 5(f) therefore was illegal. In reply Shri Setalwad vehemently opposed any such fresh plea without any as he was unable to meet the new case. Shri Setalwad however pointed out that under the said Rule the dispute is to be raised by the Committee of the several Medical Associations. In the present case that was not done and only one body had sent a representation which did not comply with the Rule to enable the dispute to be referred to the three arbitrators. According to Shri Setalwad the dispute ought to have been raised by the Co-ordination Committee of Association of Honorary Medical Officers of all Municipal Medical Institutions (Co-ordination Committee). Shri Setalwad pointed out that in the present case no Co-ordination Committee had raised any dispute, and therefore, according to him, the said Rule did not apply.

10. The limits of the judicial review under Article 226 of the Constitution of India is well established and well entrenched atleast in the judicial mind. It is not an appellate jurisdiction to sit in appeal over the judgments of the employers including the Statutory Bodies like the Bombay Municipal Corporation. What we have to see is that the decision was arrived at bona fide and that the decision was based on certain tangible material and that it was not arbitrary, unreasonable or mala fide. Very often the writ petitions are argued as if the writ Court is called upon to examine the whole material on record and to reverse the decision of the Statutory Decision Making Body. We have to only examine whether the decision assailed is taken in accordance with law and in accordance with the manner prescribed under the Rules governing such bodies. Some times some decisions might be wrong also but every such wrong decision cannot be interfered with in the extraordinary jurisdiction of Article 226 of the Constitution of India.

11. The Supreme Court has time and again cautioned in a catena of judgments that the power of the judicial review is not to be exercised as a Court of Appeal. In the case of B.C. Chaturvedi v. Union of India, reported in 1995(6) Supreme Court Cases 749 the Supreme Court has once again summarised the scope and nature of the judicial review. Paragraph 12 of the said judgment is reproduced herein below for ready reference.

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether Rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical Rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the Disciplinary Authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held that proceedings against the delinquent officer in a manner inconsistent with the Rules of natural justice or in violation of statutory Rules prescribing the mode of inquiry or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."

12. The principles on which the administrative orders passed against the Government servants, Municipal Servants and employees of any statutory Corporation or body are judicially tested are very well established. The administrative order of compulsory retirement of a servant in public interest or discontinuation of an employee or a servant does not materially differ from each other. Such orders must be passed in accordance with the prescribed manner and in accordance with the law. The authorities passing such orders cannot contravene any of the Rules vesting powers in them to pass such orders and they have to act bona fide and in good faith without bearing in my mind even a shred of malice or prejudice. Such authorities have to pass such orders as a reasonable man of prudent and to base their decision on some tangible material and never arbitrarily or acting unreasonably. The goal before such authorities while deciding to dispense with the services of their servants or the employees has to be in the public interest or in the larger interest of the organisation or the establishment. Such orders must stand the scrutiny of the judicial review when they are challenged in the Court of law. The authorities passing such orders have to be doubly careful and meticulous before passing such orders as the concerned servant or the employee has had no opportunity of hearing which is available in the disciplinary proceedings. Such authorities have to form their subjective opinion on the objective tangible material on the basis of which the concerned servant or the employee is to be relieved or discontinued. It is well established law that in such matters no pre-decisional hearing need be given.

13. In the present case the petitioner was employed under the respondent No. 1 as an Hon. Assistant Professor from 1983 and he was continued in the Municipal service till he was discontinued by the impugned order dated 25-4-1994. The petitioner has challenged the legality and validity of the said order. He has also questioned the bona fides of the respondent Nos. 1 and 2 in passing such order. According to the petitioner, he was discontinued mala fide to accommodate the respondent No. 6 in his place. The petitioner had challenged by filing a separate writ petition the appointment of the respondent No. 6. The grounds of the challenge have been incorporated in the present petition by obtaining leave to amend from the Court as stated hereinabove. It is not possible for me to agree with the submissions of Shri Shah for the petitioner that the authorities have acted arbitrarily or maliciously against the petitioner in order to favour the respondent No. 6. If the petitioner was discontinued as an Hon. Assistant Professor in accordance with the Rules it would be totally irrelevant to consider the charge of favouritism to accommodate the respondent No. 6. In my opinion the respondent No. 6 was fully qualified and eligible to be appointed as the Reader/Associate Professor and thereafter while in service she acquired full eligibility to be appointed in the post of Professor and thereafter to hold the post of Head of the Department. The petitioner was never a full timer non-practising doctor but was a part timer and was a practicing doctor. He was not available for the whole day in the hospital, as he had his own independent practice, which was, of course, permissible to the part time teachers. Subsequently however, the Rules were modified and full time teachers were to be employed. The respondent No. 6 was a full timer and was fully qualified and wholly eligible to hold the post of the professor. It is not that she was appointed merely to favour her though she was not qualified and eligible to be appointed as the Reader/Associate Professor or even as the Professor in the course of time. It is pertinent to note that the petitioner had given up the challenge to her appointment as the Associate Professor. She was lawfully continued as the full time Associate Professor and she acquired the eligibility to become the full time professor. No fault can be found with the authorities if she was appointed as the Professor and was to be appointed as the head of the department. The petitioner was not qualified and eligible to hold the post of the head of the department. He was only an Assistant Professor. He was not even an Associate Professor. It was only a fortuitous circumstance that he was appointed as the acting head of the department and continued so as initially there was no eligible full time Professor available to hold the post of head of the department. The petitioner claim the post of the head of the department on the misreading and misinterpretation of Rule 3(a) of the Rules that he should be continued as the acting head of the department until his superannuation on the ground that he continued to hold the said post for a period of three years and thereby he became entitled to become the head of the department. It is not possible for me to agree with such extreme interpretation of the Rule. Rule 3(a) has to be read pragmatically. If read so it would be clear that the incumbent should not be appointed by issuing periodical orders but one order at a stretch for a period of three years should be passed to continue the incumbent in that post and meanwhile the authorities can continue their search for a fully qualified and eligible candidate to be appointed as the Professor and hold the post of the head of the department. The rule cannot be stretched thus far that once the authorities failed to appoint the eligible and qualified candidate and that post was held by the incumbent fortuitously for a period of three years that such incumbent should continue for ever till his superannuation. The wording of the Rule has to be interpreted reasonably to mean that at a stretch the appointment would be for a period of three years but if during such period of three years the incumbent reaches the age of superannuation he should be discontinued from the date of the superannuation. The rule cannot be interpreted in the other way that the incumbent continues after completion of three years till his superannuation which would mean that a stop-gap arrangement would shower benefits of regular posting of an unqualified person in a post which requires a qualified incumbent. I therefore, do not agree with the submissions advanced on behalf of the petitioner that the discontinuation of the petitioner by the Order dated 25-4-1994 was illegal and was contrary to Rule 3(a) as he was entitled to continue till the age of his superannuation, for a period of other 12 years or so. Such an interpretation would lead to absurdity and Rules cannot be interpreted in the manner if the out come or the result appears absurd. In my opinion the petitioner could be validly discontinued from the post of the head of the department at any time when the qualified and eligible candidate becomes available. The petitioner could not therefore make any grievance against the appointment of respondent No. 6 as the head of the department as she was fully qualified and eligible as the Professor to hold the said post of the head of the department. The petitioner's challenge on that ground therefore must be rejected.

14. The second challenge to the order of termination is that the authorities had acted illegally and not in good faith and not bona fide. According to Shri Shah, the confidential history sheet of the petitioner was good and it reflected his fitness to be continued in service. Shri Shah has taken me through the entire confidential record of the petitioner. He has tried to point out from each year how he was generally fit to continue in service and even to get the promotion except the remarks in two years from 1988 to 1993. It was certainly not the role of this Court under Article 226 of the Constitution of India to look into the service record to find out whether the remarks were right or wrong or true or false. The jurisdiction is very limited and restricted to the extent of examining whether the service record was considered by the Review Committee before taking its decision. Certainly it is not the duty or power of this Court to assess the confidential record and to sit in appeal. The concerned authorities have prepared the history sheets which reflect the assessment of the work of the petitioner. I have perused the service record sheets and I cannot escape a conclusion that much was desired from the petitioner in his work as an Hon. Doctor working in a public hospital. The authorities in the confidential record have found that much improvement was required in the working of the petitioner. It is also on record that the adverse remarks were duly communicated to the petitioner and his representations were considered and decided on merits. The authorities did not have any malice against the petitioner and this fact is reflected in the history sheets as wherever his work was found satisfactory it was so mentioned, his integrity and character was also written as "Good". If there was any malice or prejudice against him in that case the authorities would have all along spoiled the record. Under the Rules before deciding the continuation or discontinuation of an Honorary doctor, opinion of a legally constituted Review Committee is sought. In the present case the Review Committee was constituted and had considered the history sheet of the petitioner from 1988 to 1993. The Review Committee was constituted of high ranking officers viz. three Deans of the three colleges/hospitals, Dy. Municipal Commissioner and the Assistant Municipal Commissioner. The Committee was headed by the Municipal Commissioner as Chairman. The Committee had considered the case of the petitioner to continue his tenure from 1-7-1993 to 30-6-1996. The decision of the Committee was taken on 14-2-1994. The recommendation of the Review Committee was that the petitioner was not fit for continuation of tenure and on the basis of the recommendation of the Review Committee the impugned order of termination of the petitioner from service was passed on 25-4-1994.

15. The Review Committee has assessed the confidential record of the petitioner and recommended that the petitioner was not fit to be continued. The committee's decision is based on the material on record. It is not that the committee has considered any extraneous factors or non-germane material to recommend discontinuation of the petitioner from service. The impugned order of the termination therefore, is legal, proper and justified and warrants no interference under the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.

16. I am fully fortified in my aforesaid decision by a judgment of the Division Bench of our High Court B.N. Srikrishna and S. Radhakrishnan, JJ. in the case of Municipal Corporation of Greater Bombay v. Prataprai N. Arya (Dr.), reported in 2000(II) C.L.R. 147. The facts in the said case are more or less similar. It was a case of compulsory retirement of the respondent-Doctor. The Municipal Commissioner had passed the impugned order on the basis of the service record and the material before him. In that case after the age of 55 years the decision to continue or not to continue the incumbent was taken. The Municipal Commissioner had decided on the basis of the Review Committee report that the respondent-doctor was to be discontinued. The Division Bench has succinctly summarised the law on the point and I cannot do better than to reproduce the following paragraphs from the said judgment.

"4. The law as to the limits of judicial review of order passed by public authorities, retiring public servants in public interest, has been succinctly laid down in the judgment of the Supreme Court in Baikuntha Nath Das & another v. Chief District Medical Officer, Baripada & another, reported in 1992(I) C.L.R. 610. In paragraph 32 of the judgment, the Supreme Court culled out the following five propositions which would apply to such situations."

(i) An order of compulsory retirement is not a punishment. It mplies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an Appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short; if it is found to be a perverse order.

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(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 circumstances by itself cannot be a basis for interference.

The Supreme Court also pointed out vide paragraph 32 that interference is permissible only on the ground mentioned in (iii) above.

5. Even much earlier, in the judgment of the Union of India v. J.N. Sinha & another, , the Supreme Court, while dealing with a situation of compulsory retiring in public interest under Fundamental Rule 56(j) observed:-

"That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various consideration may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in Government organisations, there is good deal of dead wood. It is in public interest to chop off the same."

6. In Post and Telegraph Boards & others v. C.S.N. Murthy, 1991(I) C.L.R. 815, the Supreme Court reiterated the law in Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (supra) and followed it by applying it to the case before it and further observed that a compulsory retirement under Fundamental Rule 56(j) is not an order of punishment, that it authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Says, the Supreme Court.

"Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record."

The learned judges have finally summarised the law in paragraph 8 as under:

"In these circumstances, whether continuation of the respondent in service was in public interest or not was a decision to be taken by the appellant Corporation and as long as it is not shown to be mala fide, such decision is not liable to be interfered with in exercise of writ jurisdiction. It is also not as if the appellant had arrived at the decision without any evidence before it. The facts point out to the contrary that there was sufficient material based on which any reasonable person could have come to the conclusion that the respondent was liable to be retired in public interest. Merely because another view could be possible on the same material, it is not permissible for this Court to interfere with the order passed by the appellant Corporation."

In view of the above discussion I do not find any merits and substance in the petition which deserves to be dismissed and the same is dismissed with no order as to costs. It is needless to mention that the interim order passed in this petition stands vacated.