Gauhati High Court

Suresh Prasad Singh vs The Union Of India And 3 Ors on 25 July, 2022

Page No.# 1/26

GAHC010021172016

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/5033/2016

SURESH PRASAD SINGH
NO.G/183638X
PRESENTLY SERVING AS HAVILDAR GD
18
ASSAM RIFLES
C/O 99 APO

VERSUS

THE UNION OF INDIA and 3 ORS
REP. BY THE SECY.
MINISTRY OF HOME AFFAIRS
NEW DELHI-11

2:THE DIRECTOR GENERAL
ASSAM RIFLES
DIRECTORATE GENERAL OF ASSAM RIFLES
MAHANIDESHALYA
ASSAM RIFLES
SHILLONG
PIN-793011
3:THE COMMANDANT
18
ASSAM RIFLES
C/O 99 APO
PIN-932018
4:VIVEK PURI
IC. 57015F COLONEL
PRESENTLY SERVING AS COMMANDANT
18 ASSAM RIFLES
PIN-932018
------------
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Advocate for : MR.N BARUAH
Advocate for : MR.M PHUKANCGC-R-1-4 appearing for THE UNION OF INDIA
and 3 ORS

BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA

For the petitioner : Mr. T.N. Srinivasan, Mr. N. Baruah, Adv.
For the respondents : Mrs. A. Gayan, CGC.
Date of hearing : 09.06.2022.
Date of judgment : 25.07.2022.

JUDGMENT AND ORDER
(C.A.V.)

Heard Mr. T.N. Srinivasan and Mr. N. Baruah, learned counsel for the
petitioner. Also heard Mrs. A. Gayan, learned CGC appearing for the
respondents.

2) The petitioner therein was compulsorily retired on completion of
30 years of service and upon attaining the age of 55 years. The legality of the
orders by which the petitioner was respectively retired, is under challenge in this
writ petition filed under Article 226 of the Constitution of India. The petitioner
has also prayed to direct the respondent authorities to allow him to continue in
service up to the normal age of superannuation, i.e. up to 60 years. It may be
mentioned that by virtue of interim order passed in the writ petition, the
operation of the impugned order was suspended/ kept in abeyance.

3) In brief, the case of the petitioner is that he was enrolled as
Rifleman (General Duty) on 02.07.1986 and was serving in 18 Bn., Assam Rifles.
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In due course, he was promoted as Havildar (GD). It was not in dispute that the
petitioner is medically fit and is in SHAPE-I category. On 14.09.2015, the
Commandant 18 Bn., Assam Rifles had issued a show-cause notice to inform the
petitioner that the said authority had provisionally come to a conclusion that he
was not fit to be retained in Assam Rifles service beyond 30 years of service or
on attaining 55 years of age whichever is earlier. The reason assigned therein
was that the petitioner was found to be ineffective which seriously questioned
his fitness/ competence, unjustified unwillingness for physically assuming the
next rank, revealing his reluctance to assume greater responsibility and
accountability, which had caused confusion and misguidance amongst
subordinates besides road blocking his promotion aspects in the battalion,
lackadaisical attitude for which Commandant had arrived at a provisional
conclusion that the petitioner was not fit to be retained in the Assam Rifles. In
this regard, reference was made to the Central Civil Service (Pension) Rules,
1972 and ROI 1/2004.

4) The learned counsel for the petitioner has meticulously referring
to the statements made and documents appended to the writ petition as well as
affidavit-in-reply and it was submitted that before issuance of the impugned
order of compulsory retirement, the mandatory procedure prescribed under Rule
48 of the Fundamental Rules and Rule 56(j) of the Central Civil Service
(Pension) Rules, 1972 [CCS (Pension) Rules for short] was not followed. It was
also submitted that while passing the impugned order, the entire service record
of the petitioner was not looked into by the Court/ committee constituted for the
purpose of determining whether or not to retain his service beyond 30 years. It
was further submitted that the respondent authorities had not followed the
prescribed procedure and guidelines as laid down in advisory no.
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I.31019/AR/2015/Adm-III/227 dated 21.08.2015, before issuing the impugned
order dated 31.03.2016. It was further submitted that the impugned order was
absolutely misleading because it was mention therein that the petitioner was
"permitted to retire", whereas at no point of time, the petitioner had given
notice to the respondents of his intention to retire. Accordingly, it was submitted
that by the impugned order, it was sought to be projected by the respondents
as if the petitioner was being compulsorily retired as per his own request. By
referring to an order appended to affidavit-in-reply as Annexure-I, it was
submitted that the Brigadier (Personnel) on behalf of Director General, Assam
Rifles had arrived at a conclusion that adverse report given by the Commandant
18 Bn., Assam Rifles in respect of 51 Non-commissioned Officers (NCO) was in
non-adherence to the policy instructions issued vide ROI 5/1997 and deal with
appropriate to review all such ACRs of affected NCOs. Accordingly, the adverse
ACRs of 51 NCOs of 18 Bn. Assam Rifles for the year 2014-15 was expunged. It
was further submitted that even the petitioner was the victim of un-
communicated adverse remarks in his ACRs. It was further submitted that in
order to be promoted to the next higher rank and/ or continuing in service
beyond 30 years of service, the petitioner should have got more than "average"
in the ACRs for last five years, but the remark of "average" or "below", though
not adverse remarks, but as it remain un-communicated, the petitioner had
suffered his compulsory retirement and therefore, the petitioner was made to
suffer for a remark in the ACRs which was not communicated to him. The
legality of the said impugned order also been assailed on the ground that the
petitioner was being compulsorily retired in public interest. Hence, it was
submitted that the compulsorily retirement of the petitioner was tainted with
malice and was passed on extraneous consideration.
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5) In support of his submissions, the learned counsel for the
petitioner has placed reliance, (i) Sukhdev Singh v. Union of India & Ors.,
(2013) 9 SCC 566, (ii) Abhijit Ghosh Dastidar v. Union of India & Ors., (2009) 16
SCC 146, (iii) Dev Dutt v. Union of India, (2008) 8 SCC 725 , (iv) Sunil Kumar
Shahi v. Union of India & Ors., WP(C) 1250/2015 and connected writ petition,
decided by this Court by judgment and order dated 15.06.2016, (v) Yogendra
Nath Singh v. Union of India & Ors., WP(C) 4872/2019 , decided by this Court by
judgment and order dated 27.01.2022, (vi) Gavendra Kumar v. Union of India &
Ors., WP(C) 270/2021 decided by the High Court of Meghalaya at Shillong by
order dated 22.04.2022.

6) Per-contra, by referring to the following cases, being (i)
Baikuntha Nath Das & Anr. v. Chief District Medical Officer, Baripada & Anr.,
(1992) 2 SCC 299, (ii) Posts & Telegraphs Board & Ors. v. C.S.N. Murthy, (1992)
2 SCC 317, (iii) Union of India v. V.P. Seth & Anr., 1994 SCC (L&S) 1052, (iv)
Secretary to the Government, Harijan & Tribal Welfare Department,
Bhubaneswar (Orissa) v. Nityananda Pati, 1993 Supp (2) SCC 391, (v) State
Bank of Orissa & Ors. v. Ram Chandra Das, (1996) 5 SCC 331, (vi) State of
Punjab v. Gurdas Singh, (1998) 4 SCC 92, (vii) State of Gujarat v. Umedbhai M.
Patel, (2001) 3 SCC 314, (viii) Pyare Mohan Lal v. State of Jharkhand & Ors.,
(2010) 10 SCC 693, (ix) Rajendra Singh Verma (Dead) through LRs. & Ors. v.
Lieutenant Governor (NCT of Delhi) & Ors., (2011) 10 SCC 1, (x) Rajasthan
State Road Transport Corporation & Ors. v. Babu Lal Jangir, (2013) 10 SCC 551,
(xi) Arun Kumar Gupta v. State of Jharkhand & Anr., (2020) 13 SCC 355, (xii)
National Insurance Company Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680
and (xiii) Tikendra Singh v. The Union of India & Ors., 2015 (4) GLT 40 , the
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learned CGC has opposed this writ petition on the ground that the ratio laid
down in the aforesaid cases, entries in the ACRs though un-communicated could
be taken into consideration for the purpose of compulsory retirement and for
the purpose of exercising power to compulsory retirement of personnel of
Assam Rifles, which was a combatised force, element of public interest was
inherent. Accordingly, it was submitted that in view of the decisions cited by
him, the cases cited by the learned counsel for the petitioner would have no
applicability.

7) On a perusal of material on record, it is seen that the
competent officer, i.e. Col. Commandant of 18 Bn. Assam Rifles had issued
herein below extracted show-cause notice dated 14.09.2015 to the petitioner.
CONFIDENTIAL
18 Assam Rifles
PIN- 932018
c/o 99 APO

1244/Rec/2015/766 14 Sep 2015

G/183638X Hav (GD)
Suresh Prasad Singh
E Coy, 18 Assam Rifles
c/o 99 APO

SHOW CAUSE NOTICE

1. Few extremely serious shortcomings on your part
have come to the notice of undersigned.
2. While discharging your duties towards good
order and military discp you have been found to be ineffective which
seriously questions your fitness/ competence to continue in your
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present appointment.
3. Despite being fully qualified for promotion, your
unjustified unwillingness for physically assuming the next rk aimed at
questioning & undermining the force policies reveals your reluctance to
assume greater responsibility & accountability. It has also further
caused confusion & misguidance among your subordinate besides road
blocking their promotion aspects in the bn.
4. Apropos, taking into consideration such lackadaisical
attitude towards your appointment for which you have been emp in
Assam Rifles, the undersigned has provisionally come to the conclusion
that you are not fit to be retained in Assam Rifles service beyond 30
years of service or 55 years of age whichever is earlier, as per Rule of
Central Civil Service (Pension) Rule 1972 and ROI 1/2004.
5. Your should submit your reply to this show cause
notice within two weeks of its receipt, failing which it shall be
presumed that you have no grounds to urge against the proposed
action and ex-parte decision shall be initiated.
6. The receipt of this show cause notice should be
acknowledged.
(Vivek Puri)
Col
Comdt.

8) The petitioner had responded to the said show cause notice by
submitting his reply dated 24.09.2015. However, by the impugned order no.
1208/Rec/2016/512 dated 31.03.2016, issued by the Col. Commandant, 18 Bn.
Assam Rifles, the petitioner was retired from service, the text of the said order
is extracted below:
OFFICE OF THE COMMANDANT: 18 ASSAM RIFLES
ORDER

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120/Rec/2016/507 dated: 31 Mar 2016 Under the provisons of Rule 48(1) (b) of CCS (Pension) Rule 1972, No. G/183638X Hav/GD Suresh Prasad Gupta of 18 Assam Rifles is hereby permitted to retire from service on Retiring Pension with effect from the afternoon of 31 Aug 2016.

(Vivek Puri) Colonel Comdt.

9) It is deemed appropriate to extract below the provisions of Rule 48 of the CCS (Pension) Rules, as well as Rule 56(j) of Fundamental Rules:-

48. Retirement on completion of 30 years' qualifying service.- (1) At any time after a Government servant has completed thirty years' qualifying service -

(a) he may retire from service, or

(b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension : Provided that -

(a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and

(b)the appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice :

Provided further that where the Government servant giving notice under clause (a) of the preceding proviso is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule:

Provided further that the provisions of clause (a) of this sub-rule shall not Page No.# 9/26

apply to a Government servant, including scientist or technical expert who is -

(i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes,

(ii) posted abroad in foreign based offices of the Ministries/Departments,

(iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.

[(1-A) (a) A Government servant referred to in clause (a) of the first proviso to sub-rule (1) may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefor.

(b) On receipt of a request under clause (a) the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

(2) A Government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority:

Provided that the request for withdrawal shall be within the intended date of his retirement.

(3) For the purpose of this rule the expression 'appointing authority' shall mean the authority which is competent to make appointments to the service or post from which the Government servant Page No.# 10/26

retires.

FR 56(j) :- Notwithstanding anything contained in clause (j), the Appropriate Authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a Government servant in Group C service or post who is not governed by any pension rules, after he has completed thirty years' service by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice:

(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;

(ii) (ii) In any other case after he has attained the age of 55 years.

10) In the present case in hand, it is not the case of the respondents that the petitioner had exercised his option to retire on completion of 30 years' of qualifying service. Therefore, the respondent authorities had applied the provision of Rule 48 (1)(b) of CCS (Pension) Rule, 1972 and "permitted to retire". As per the prescription of the said Rule 48(1)(b) is that a government servant may be required to retire in "public interest". Moreover, as per Rule 56(j) of the Fundamental Rules, a government servant can be retired in "public interest" before attaining the age of 55 years. The impugned order does not indicate that the petitioner was retired in "public interest". The respondents have not brought on record any material to show that while invoking Rule 48(1)

(b) of the CCS (Pension) Rules, 1972 and opinion was formed with regard to existence of "public interest" to retire the petitioner on attaining the age of 55 years or that it was not in "public interest" to retain the petitioner in service in the Assam Rifles Service beyond 30 years of service. Nonetheless, it cannot be said that the compulsory retirement was imposed on the petitioner as a punitive Page No.# 11/26

measure.

11) It may be mentioned here that as per material available on record, the petitioner was given a show cause notice on 14.09.2015 that he was not fit to retain in Assam Rifles Service beyond 30 years of service or 55 years of age whichever is earlier and on receipt of reply, by an order dated 31.03.2016, the petitioner was "permitted to retire" on retiring pension w.e.f. the afternoon of 31.08.2016. Therefore, the allegation of the petitioner that the requisite formalities were not complied with cannot be accepted.

12) In the case of Baikuntha Nath Das (supra), decided by a 3- Judge Bench of the Supreme Court of India, the question which was raised in the said appeals was- whether it is permissible to the Government to order compulsory retirement of a government servant on the basis of materials which includes un-communicated adverse remarks. Paragraphs 33 to 35 thereof is quoted below:

"33. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks, not every remark comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but is yet relevant for the purpose of F.R. 56 (j) or a Rule corresponding to it. The object and purposes for which this power is to be exercised is well settled in Union of India v. J.N. Sinha, (1970) 2 SCC 458 and other decisions referred supra.

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 misbehaviour.

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(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 is 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 his 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 was also taken into consideration. That circumstance by itself cannot be a basis for interference.

35. Before parting with the case, we must refer to an argument urged by Sri R.K. Garg. He stressed what is called, the new concept of Article 14 as adumbrated in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and submitted on that basis that any and every arbitrary, action is open to judicial scrutiny. The general principle Page No.# 13/26

evolved in the said decision is not in issue here. We is concerned mainly with the question whether a facet of principle of natural justice

- audi alteram partem - is attracted in the case of compulsory retirement. In other words, the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma.

13) The aforesaid decision was followed by four subsequent 3-Judge Bench decisions of the Supreme Court of India in the case of (i) Posts and Telegraphs Board (supra), (ii) V.P. Seth (supra), (iii) Gurdas Singh (supra), and

(iv) Pyare Mohan Lal (supra). The said decision was also followed by the 2- Judge Bench of the Supreme Court of India in the case of (i) Nityanand Pati (supra), (ii) Babu Lal Jangir (supra) and (iii) Arun Kumar Gupta (supra).

14) In para-29 of the case of Pyare Mohan Lal (supra), the Supreme Court of India had observed as follows:-

"29. The law requires the Authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a Judicial Officer is required to be examined, treating him to be differently from other wings of the society, as he is serving the State in a different capacity. The case of a Judicial Officer is considered by a Committee of Page No.# 14/26

Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non- application of mind or mala fide."

15) It may also be stated that in the case of Ram Chandra Das (supra), which was decided by a 3- Judge Bench, in para-7 and 8, it was observed as follows:-

"7. It is contended for the respondent that adverse entries, for the two years referred to earlier and pending departmental proceedings would not be sufficient to compulsorily retire the Government servant on the premise that after promotion they would become irrelevant and minor penalty was imposed. It is true that the Government servant was allowed to cross the efficiency bar to enable him to avail the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made is after promotion. Even otherwise, the remarks form part of service record and character role. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and circumstances to act of misconduct, nevertheless remains part of the record for overall consideration to retire a Government servant compulsorily. The object always is public interest. The material question is whether the entire record of service was considered or not? It is not for the Court/Tribunal to see whether the decision of the Government to compulsorily retire the Government servant is justified or not. It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given after adverse entries was made, cannot be a ground to note that compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that Page No.# 15/26

state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any, but that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the Government servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries was made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits.

8. Under these circumstances, we is of the considered view that the Tribunal was wholly unjustified in interfering with the decision to retire the respondent compulsorily from service on the aforesaid grounds."

16) In the case of Umedbhai M. Patel (supra), the Supreme Court of India, by relying on the case of Baikuntha Nath Das (supra), had observed as follows:

"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:

(i) Whenever the services of a public servant is no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can Page No.# 16/26

also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure."

17) In the case of Rajendra Singh Verma (dead) through LRs and ors. (supra), the Supreme Court of India had observed as follows:-

"143. Compulsory retirement from service is not considered to be a punishment. Under the relevant rules, an order of dismissal is a punishment laid on a Government servant when it is found that he has been guilty of misconduct or the like. It is penal in character because it involves loss of pension which under the Rules have accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-appointment, one who is removed is. A compulsory retirement is neither dismissal nor removal and differs from both of them, in that it is not a form of punishment prescribed by the rules and involves no penal consequences, in as much as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.

144. As explained by a Bench of three Hon'ble Judges of this Court in State of U.P. v. Shyam Lal Sharma, (1971) 2 SCC 514, "13. ... in ascertaining, whether the order of compulsory retirement is one of punishment, it has to be ascertained, whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order of Page No.# 17/26

compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, as order of compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired.

145. So far as the present cases is concerned, this Court finds that there is no words in the orders of compulsory retirement, which throw any stigma against the two appellants and the deceased officer. Therefore, it is not necessary for this Court to make inquiry into the Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement, which alone is for examination. If the order itself does not contain any imputation or charge against the two appellants and the deceased officer, the fact that considerations of misconduct or misbehaviour weighed with the High Court in coming to its conclusion to retire them compulsorily does not amount to any imputation or charge against them. It is not established from the order of compulsory retirement itself that the charge or imputation against the appellants was made a condition for exercise of the power. Therefore, the orders of retirement cannot be considered to be one for dismissal or removal in the nature of penalty or punishment.

146. Now, the policy underlying Article 311(2) of the Constitution is that when it is proposed to take action against the servant by way of punishment and that will entail forfeiture of benefits already earned by him, he should be heard and given an opportunity Page No.# 18/26

to show cause against the order. The confidential reports provide the basic and vital inputs for assessing the performance of an officer and his advancement in his career as also to serve the data for judging his comparative merits when the questions arise for his confirmation, promotion, grant of selection grade, crossing E.B., retention in service beyond the age of 50 years etc. Maintenance of such records is ordinarily regulated by administrative rules or instructions. Writing the confidential report is primarily and essentially an administrative function.

147. Normally tribunals/Courts is loath to interfere in cases of complaints against adverse remarks and to substitute his own judgment for that of the reporting or reviewing officers. It is because these officers alone is best suited to judge the qualities of officials working under them and about his competence in the performance of official duties entrusted to them. Despite fear of abuse of power by prejudiced superior officers in certain cases, the service record contained in the confidential reports, by and large, reflects the real personality of the officer.

148. The object of writing confidential reports and making entries therein is to give an opportunity to the public servant to improve excellence. Article 51-A(j) of the Constitution enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Therefore, the officer entrusted with the duty to write CR has a public responsibility and trust to write the CR objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer. Opportunity of hearing is not necessary before adverse remarks because adverse remarks by themselves do not constitute a penalty. However, when the order of compulsory retirement is passed, the authority concerned has to take into consideration the whole service record of the officer concerned which would include non- communicated adverse remarks also. Thus it is settled by several Page No.# 19/26

reported decisions of this Court that un- communicated adverse remarks can be taken into consideration while deciding the question whether an official should be made to retire compulsorily or not.

149. In State of U.P. & Anr. v. Bihari Lal, (1994) Supp (3) SCC 593, this Court has taken the view that even an adverse entry which has been set aside in appeal on technical grounds could also be taken into consideration. The plea that since the last entry, i.e., 'C-Integrity Doubtful' for the year 2000 was communicated almost around the same time when the order of compulsory retirement was communicated and as the appellants had no opportunity to represent against the same, it ought not to have been taken into consideration and that the consideration of the said last adverse entry vitiates the order of compulsory retirement has no merits.

150. This Court has consistently taken the view that an order of compulsory retirement is not a punishment and does not have adverse consequence and, therefore, the principles of natural justice is not attracted. What is relevant to notice is that this Court has held that an un-communicated adverse ACR on record can be taken into consideration and an order of compulsory retirement cannot be set aside only for the reason that such un-communicated adverse entry was taken into consideration. If that be so, the fact that the adverse ACR was communicated but none of the appellants had an opportunity to represent against the same, before the same was taken into consideration for passing order of compulsory retirement, cannot at all vitiate the order of compulsory retirement.

151. In State of U.P. & Anr. v. Bihari Lal (supra), this Court has ruled that before exercise of the power to retire an employee compulsorily from service, the authority has to take into consideration the overall record, even including some of the adverse remarks, though for technical reasons, might have been expunged on appeal or revision. What is emphasised in the said decision is that in the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by Page No.# 20/26

the Court/Tribunal in exercise of its power of judicial review. According to this Court, what is needed to be looked into is whether a bona fide decision is taken in the public interest to augment efficiency in the public service.

152. Again, a three Judge Bench of this Court in Union of India vs. V.P. Seth & Anr., 1994 SCC (L&S) 1052, has held that uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement. The bench in the said case made reference to Baikuntha Nath Das vs. Chief District Medical Officer, Baripada (1992) 2 SCC 299, as well as Posts and Telegraphs Board vs. C.S.N. Murthy, (1992) 2 SCC 317, and after reiterating, with approval, the principles stated therein, has laid down firm proposition of law that 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 was also taken into consideration. Applying the ratio laid down in the above-mentioned two cases to the facts of the present cases, this Court finds that the authorities concerned was justified in relying upon the adverse entry made against the two appellants and the deceased officer in the year 2000 indicating that his integrity was doubtful alongwith other materials. Here in these cases, the ACRs for the year 2000 was communicated to the three officers but before they could exercise the option given to them to make representation against the same, the orders of compulsory retirement was passed. When an uncommunicated adverse entry can be taken into consideration, while passing order of compulsory retirement, there is no reason to hold that adverse entry communicated, against which opportunity of making representation is denied, cannot be taken into consideration at the time of passing order of compulsory retirement. Merely because the two appellants and the deceased officer had no opportunity to make representation against the said entry or that the representation made against the same was pending, would not render consideration of the said entry illegal, in any manner, whatsoever.

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207. This Court has already taken the view that merely because Mr. Rohilla did not get any opportunity to make representation against the adverse remarks for the year 2000, those remarks could not have been ignored by the competent authority while passing the order of compulsory retirement against him because the settled law is that even uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement. So far as the writ petition, filed by Mr. Rohilla against his reversion is concerned, this Court finds that the order of compulsory retirement was not passed to render the said petition infructuous. The order of compulsory retirement has been passed on assessment of whole service record of Mr. Rohilla. Thus, Mr. Rohilla has failed to substantiate the plea that the order of his compulsory retirement is either mala fide or arbitrary or perverse."

18) In the present case in hand, the respondents is relying upon an advisory dated 21.08.2015, which prescribes the criteria while recommending the cases for retention in service beyond 30 years of service or 55 years of age, whichever is earlier. It is provided that (i) out of last five ACRs grading minimum three report should be "high average", (ii) rest two reports should not be below the "average", (iii) should be recommended for promotion in all five reports. However, in respect of the petitioner, he had being graded "average" in one ACR by the reporting officers and also "not recommended" for further promotion in the ACR for the year 2011-12 and therefore, he was not recommended for further retention beyond 30(thirty) years of service by the service review board in public interest.

19) It is in the aforesaid context that the decision of the 3-Judge Bench of the Supreme Court of India in the case of Sukhdev Singh (supra), cited Page No.# 22/26

by the learned counsel for the petitioner assumes significance. Para 3 to 9 thereof is quoted below:

"3. Subsequent to the above two decisions, in the case of Dev Dutt v. Union of India & Ors., (2008) 8 SCC 725, this Court had an occasion to consider the question about the communication of the entry in the ACR of a public servant (other than military service). A two Judge Bench on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363, and principles of natural justice exposited by this Court from time to time particularly in A.K. Praipak v. Union of India, (1969) 2 SCC 262; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398; Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321, and State of Maharashtra v. Public Concern for Governance Trust, (2007) 3 SCC 587, concluded that every entry in the ACR of a public service must be communicated to him within a reasonable period whether it is poor, fair, average, good or very good entry. This is what this Court in paragraphs 17 & 18 of the report in Dev Dutt (supra) at page 733:

"17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non- communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi (supra) that arbitrariness violates Article 14 of the Constitution.

18. Thus it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very Page No.# 23/26

good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."

4. Then in paragraph 22 at page 734 of the report, this Court made the following weighty observations:

"22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which is in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who is superseded due to this arbitrariness, while officers of inferior merit may be promoted."

5. In paragraphs 37 & 41 of the report, this Court then observed as follows:

"37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.

* * *

41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in Page No.# 24/26

civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."

6. We is in complete agreement with the view in Dev Dutt (supra), particularly paragraphs 17, 18, 22, 37 & 41 as quoted above. We approve the same.

7. A three Judge Bench of this Court in Abhijit Ghosh Dastidar (supra), followed Dev Dutt (supra). In paragraph 8 of the report, this Court with reference to the case under consideration held as under:

"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non- communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and Page No.# 25/26

equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.

9. The decisions of this Court in Satya Narain Shukla v. Union of India & Ors. (2006) 9 SCC 69 and K.M. Mishra v. Central Bank of India & Ors., (2008) 9 SCC 120, and the other decisions of this Court taking a contrary view is declared to be not laying down a good law."

20) From the above, it is seen from the contents of para-7 that every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. Nonetheless, an exception was carved out for persons serving in the military and where the said observation was accepted for other than the armed forces and was applicable for persons in civil, judicial, police, or any other service. It is nobody's case that Assam Rifles is a military force and/ or an armed force of the Country. Rather, it is too well known that while conducting recruitment of personnel in Assam Rifles, a common recruitment process is undertaken along with other Central Armed Police Force (CAPFs), NIA, etc. As per the provisions of the Assam Rifles Act, 1941, except for a very limited purpose of Sections 128 (Use of civil force to disperse), 130 (Duty of officer commanding troops required by Magistrate to disperse Assembly) and 131 (Power of commissioned military officers to disperse Assembly) of the Cr.P.C., 1898. Therefore, in the absence of any material to the contrary, the Court is unable to treat the establishment of Page No.# 26/26

Assam Rifles either as a Military or as an Armed Force of the Country.

21) However, it is noted that while deciding the case of Sukhdev Singh (supra), the judgment of the coordinate 3-Judge Bench decision of the Supreme Court of India in the earlier point of time, viz., (i) Baikuntha Nath Das (supra), (ii) Posts and Telegraphs Board (supra), (iii) V.P. Seth (supra), (iii) Gurdas Singh (supra), (iv) Nityanand Pati, (v) Pyare Mohan Lal (supra), (vi) Ram Chandra Das (supra), and 2 Judge Bench decision rendered in the case of (i) Umedbhai M. Patel (supra), and (ii) Rajendra Singh Verma (supra), was not placed before the said Bench.

22) Therefore, in light of the majority of 3-Judge Bench decisions cited before this Court and referred to herein before, in the considered opinion of the Court, the said decisions cited by the learned CGC have more precedential value than the case of Sukhdev Singh (supra), where the previous decisions of the coordinate 3-Judge Bench of same Court was not placed. Accordingly, none of the six cases cited by the learned counsel for the petitioner would help the petitioner in any manner.

23) Accordingly, this writ petition is dismissed without interfering with the impugned order of superannuation of the petitioner. The interim order passed on 24.08.2016 is vacated.

24)             The parties are left to bear their own cost.


                                                                 JUDGE



Comparing Assistant