Kerala High Court
The Union Territory Of Lakshadweep vs P. P. Hajarommabi on 7 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
OP (CAT) NO. 207 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 11.09.2023 IN OA NO.461 OF
2022 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN THE O.A.:
1 THE UNION TERRITORY OF LAKSHADWEEP,
REPRESENTED BY THE ADMINISTRATOR, OFFICE OF THE
ADMINISTRATOR, LAKSHADWEEP ADMINISTRATION,
SECRETARIAT BUILDING, KAVARATTI,
UNION TERRITORY OF LAKSHADWEEP, PIN - 682555.
2 THE REVIEW COMMITTEE FOR LAKSHADWEEP ADMINISTRATION,
CONSTITUTED AS PER THE OFFICE MEMORANDUM DATED
28.08.2020 ISSUED BY THE MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCES & PENSION, DEPARTMENT OF PERSONNEL
AND TRAINING, REPRESENTED BY ITS CONVENER/SECRETARY
(SERVICES), SECRETARIAT BUILDING, KAVARATTI,
UNION TERRITORY OF LAKSHADWEEP AT KAVARATTI,
PIN - 682555.
3 THE SECRETARY (SERVICES),
OFFICE OF THE ADMINISTRATOR, LAKSHADWEEP
ADMINISTRATION, SECRETARIAT BUILDING, KAVARATTI,
UNION TERRITORY OF LAKSHADWEEP AT KAVARATTI,
PIN - 682555.
4 THE DIRECTOR (SERVICES),
OFFICE OF THE ADMINISTRATOR, LAKSHADWEEP
ADMINISTRATION, SECRETARIAT BUILDING, KAVARATTI,
UNION TERRITORY OF LAKSHADWEEP AT KAVARATTI,
PIN - 682555.
BY ADV SHRI.SAJITH KUMAR V., SC,
LAKSHADWEEP ADMINISTRATION
OP(CAT) 207/2023
2
RESPONDENT/APPLICANT:
P. P. HAJAROMMABI,
AGED 56 YEARS
W/O. E. JAMALUDDEEN, RESIDING AT DARUL HADI,
KAVARATTI, UNION TERRITORY OF LAKSHADWEEP, PIN -
682555
BY SRI.T.MADHU
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 29.5.2024, THE
COURT ON 07.06.2024 DELIVERED THE FOLLOWING:
OP(CAT) 207/2023
3
"C.R"
AMIT RAWAL & EASWARAN S., JJ.
------------------------------------
OP (CAT) No. 207 of 2023
-------------------------------------
Dated this the 7th day of June, 2024
JUDGMENT
Easwaran S.,J.
Whether an order passed under Rule 56(j) of the
Fundamental Rules, 2017 read with Rule 48 of the Central Civil
Services (Pension) Rules, 1972 could be judicially reviewed by
the Central Administrative Tribunal, is the question that is
raised before us in this Original Petition.
2. The applicant before the Central Administrative
Tribunal challenged an order by which the applicant was
prematurely retired from service on 3.8.2022. The applicant
joined the service of the Lakshadweep Administration as a
stenographer in the year 1990. Thereafter, the applicant was
transferred to the office of the Deputy Collector. In 1996, the
applicant was posted at Kochi, where she worked till 2000.
Later, from 2000 to 2006, the applicant worked at Agricultural
Department, Kavaratti. From 2007 onwards till 2011, the
OP(CAT) 207/2023
applicant worked at the office of the Enquiry Commissioner.
Later, from 2011 to 2013, the applicant worked at PWD,
Kalpeni, and later from 2013 to 2014, the applicant worked at
the Office of the Superintendent of Police, Kavaratti. Still
further, the applicant worked at the Industries Department from
2014 to 2015 and from 2015 to 2019 she worked at LPWD,
Kochi. During November, 2019, the applicant was transferred
and posted as Stenographer Grade-II (PA to DIG) at the Police
Headquarters, Kavaratti. Before completing three years of
service at the above station, the applicant was transferred to
the office of LPWD, Amini as per Annexure-A2 order.
Challenging the said order, the applicant preferred
O.A.No.210/2022 and the said O.A. came up for hearing on
11.5.2022 and later adjourned to 25.5.2022. On 25.5.2022, it
was adjourned to 16.6.2022. In the meantime, the applicant
was served with Annexure-A1 order dated 3.8.2022 issued
under Rule 56(j) of the Fundamental Rules, wherein she was
prematurely retired from service. Challenge to the said order
was basically directed on the ground of mala fides, especially
OP(CAT) 207/2023
when the petitioners/respondents were required to sustain the
order of transfer which was challenged in O.A.No.210/2022.
3.The petitioners/respondents entered appearance and filed
their reply statement primarily raising the contention that it
was at the interest of the administration that the applicant was
prematurely retired from service. It was further pointed out
that on 26.8.2021, a Committee was constituted under Rule
56(j)/(l) of the Fundamental Rules and Rule 48 of the CCS
(Pension) Rules, 1972 for deciding the representations of
affected employees. The Committee scrutinised the
representation of the respondent/applicant before the Tribunal
and the minutes was recorded on 01.04.2022. Based on the
tentative decision so arrived, the affected persons were given
an opportunity to file representation as per Ext.R1(e)
proceedings. The representation committee did not find any
merit in the representation of the applicant dated 22.6.2022,
and the decision/recommendation of the review committee held
on 1.4.2022 was confirmed and accordingly, the order was
passed. It was further contended that the order so passed
OP(CAT) 207/2023
could not be subjected to judicial review and it is the interest of
the administration that the employee was sought to be
prematurely retired.
4. Based on the pleadings on record, by the order
impugned in this Original Petition, the Tribunal concluded that
the order of compulsory retirement could not have been
imposed against the applicant based on the Office
Memorandum dated 28.8.2020 issued by the Government of
India, Ministry of Personnel & Public Grievances & Pension.
Reliance was also placed on the judgment of the Delhi High
Court in Ashok Kumar Aggarwal v. Union of India (WP(C)
No.11177/2020 : 2021 SCC Online Del 4453). According
to the Central Administrative Tribunal, the case on hand was
liable to be distinguished with the judgment in Ashok Kumar
Aggarwal (supra) especially when there were no grave cases
against the applicant unlike the case in Ashok Kumar
Aggarwal (supra). Therefore, the petitioners/respondents
were directed to reinstate the applicant in service forthwith.
OP(CAT) 207/2023
5. We have heard Sri.Sajith Kumar V., learned Standing
Counsel appearing for Lakshadweep Administration, and
Sri.T.Madhu, learned counsel appearing for the
respondent/applicant.
6. Learned counsel appearing for the petitioners,
Sri.Sajith Kumar, contended that the Tribunal erred egregiously
in allowing the Original Application, especially when the Tribunal
could not have substituted the subjective satisfaction arrived by
the Committee constituted for considering the case of a
premature retirement of an employee under Fundamental Rule
56(j). He further contented that as per the report of the
Committee, it was specifically found that the applicant had
invited several departmental proceedings against her. He would
take this Court to the recommendation of the Committee, which
was placed on record as Annexures-R1(d) before the Central
Administrative Tribunal. Referring to the minutes of the
Committee, Sri.Sajith Kumar contended that there were at least
four occasions where the applicant was proceeded
departmentally and, on each occasion, she visited with various
OP(CAT) 207/2023
punishments. He would further invite our attention to the
report, which specifically noticed the recent conduct of the
employee. Therefore, according to Sri.Sajith Kumar, when
cumulative assessment of the performance of the applicant was
taken into consideration, the Administration was justified in
ordering premature retirement of the employee by exercise of
the Rules. Therefore, he contended that the subjective
satisfaction of the Committee could not have been substituted
by the Tribunal. Insofar as the representation submitted by the
applicant for review of the decision is concerned, it is pointed
out that no sufficient materials were brought on record to
deviate from the recommendations of the Committee.
Therefore, according to him, the Original Application was not
liable to be allowed.
7. On the other hand, learned counsel appearing for the
respondent/applicant would place before us the judgment of
the Hon'ble Supreme Court in Captain Pramod Kumar Bajaj
v. Union of India and Another [2023 KHC Online 6230].
Our attention was invited to para 16 of the judgment wherein
OP(CAT) 207/2023
the Hon'ble Apex Court has quoted with approval, the judgment
of the Supreme Court in Allahabad Bank Officers'
Association and Another v. Allahabad Bank and Others
[(1996) 4 SCC 504]. According to him, the order of
premature retirement is based on a report, which would cast
stigma on the applicant and therefore, when tested within the
parameters laid down by the Supreme Court in the aforesaid
judgment, the order of premature retirement has to necessarily
fail. We were also appraised of Annexure-R1(b) Office
Memorandum dated 28.8.2020, especially clause 10(iv)
thereto. For the sake of convenience, the aforesaid clause is
extracted below:
"10. Broad Criteria to be followed by the Review
Committee :- The broad criteria to be followed by the
Review Committee while making the recommendations are
as follows:-
xxx xxx xxx
(iv) No Government servant should ordinarily be retired on
ground of ineffectiveness, if, his service during the
preceding 5 years or where he has been promoted to a
higher post during that 5 year period, his service in the
highest post, has been found satisfactory. There is no such
stipulation, however, where the Government servant is to
OP(CAT) 207/2023
be retired on grounds of doubtful integrity. In case of those
Government servants who have been promoted during the
last 5 years, the previous entries in the ACRs may be taken
into account if he was promoted on the basis of seniority
cum fitness, and not on the basis of merit."
It is the specific case of the respondent/applicant that her case
would fit within the said exception, wherein no misconduct was
alleged within the period of five years from the date of the last
disciplinary proceedings.
8. We have considered the rival submissions raised
across the bar.
9. In our considered view, the order of the Tribunal
cannot be sustained for reasons more than one. Fundamental
Rules, 2017 empowers the appointing authority to impose a
premature retirement against an employee. Rule 56(j) of the
Fundamental Rules is extracted below:
"56(j). Notwithstanding anything contained in this rule,
the Appropriate Authority shall, if it is of the opinion that it
is in the public interest so to do, have the absolute right to
retire any Government servant by giving him notice of not
less than three months in writing or three months' pay and
allowances in lieu of such notice:-
OP(CAT) 207/2023
(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) in any other case after he has attained the age of
fifty-five years."
A reading of the aforesaid Rule gives unqualified right to the
authority, if it is of the opinion that it is in the public interest to
do so, to retire any Government servant by giving him notice of
not less than three months in writing or three months' pay and
allowances in lieu of such notice. Right of an employer to cause
premature retirement of an employee is well founded. When
such power is exercised, the scope of judicial review is limited
and it is only permissible on the ground of non-application of
mind, mala fides or want of material particulars. [Pyare
Mohan Lal v. State of Jharkhand And Others : (2010) 10
SCC 693].
10. In State of U.P. v. Bihari Lal [1994 Supp (3) SCC
593], it was held that if the general reputation of an employee
is not good, though there may not be any tangible material
OP(CAT) 207/2023
against him, he may be given compulsory retirement in public
interest and judicial review of such orders are limited.
11. In yet another decision of the Supreme Court
reported in Jugal Chandra Saikia v. State of Assam
[(2003) 4 SCC 59], it was held that the when Screening
Committee which consists of responsible officers, who have
assessed the entire service records and formed an opinion
objectively as to whether any employee is fit to be retained in
service or not, in the absence of any allegation of mala fides,
there is no scope of judicial review against such orders.
However, in Baldev Raj Chadha v. Union of India and
Others [(1980) 4 SCC 321] the Hon'ble Supreme Court has
said that the requisite opinion for retirement of a victim should
be in public interest - not personal, political, or other interest,
but solely governed by the interest of public service. Hence,
naked and arbitrary exercise of power would be bad in law.
12. However going by the dictum laid down by the
Supreme Court in Pyare Lal (supra) and in Bihari Lal (supra),
we are of the view that that the Tribunal completely went
OP(CAT) 207/2023
wrong in having a judicial review of the assessment made by
the Screening Committee and consequential order being
passed. The contention of the applicant that it cast a stigma on
her when visited with the order of premature retirement does
not impress us, especially when the order at Annexure-A1 does
not cast any stigma on the applicant. Still further, her
contention based on the Office Memorandum dated 28.8.2020
is equally fallacious, especially when it does not per se apply to
the case of the applicant. It is true that the Office
Memorandum stipulates that no Government servant should
ordinarily be retired on the ground of ineffectiveness, if, his/her
service during the preceding 5 years or when promoted to a
higher post during that 5 year period, service in the higher post
is found to be satisfactory. The Office Memorandum, in our
view, does not cast an obligation on the authorities preventing
them from proceeding against an employee for premature
retirement, if on a cumulative assessment his/her service is
found to be unsatisfactory. Even if we apply clause 10(iv) as
contended by the learned counsel for the respondent/applicant,
OP(CAT) 207/2023
we cannot ignore, with the same breath, clause (v) which
provides consideration of the entire service records of a
government servant at the time of review. Therefore, if the
entire service record of the applicant is put to scrutiny by the
Committee, then, it cannot be said under any circumstances
that the Committee was misguided and that extraneous
consideration fell into the hands of the Committee while
recommending the case of the applicant for premature
retirement. This being the position of law, when we analyse
the order so passed by the Central Administrative Tribunal, we
are afraid that we cannot subscribe to the findings of the
Tribunal. In the order impugned, the Tribunal has specifically
found that in the proceedings of the Committee there was no
proper assessment or grounds existed in relation to her being
found to be deadwood or being requested to be removed from
the administration to improve performance or efficiency. At the
risk of repetition, we reiterate that it was wholly outside the
domain of the Tribunal to have undertaken such exercise. We
are at pains to see how the Tribunal could undertake such
OP(CAT) 207/2023
exercise and proceed to find that there are mala fides on the
part of the authorities. We are also surprised to note that even
the applicant before the Tribunal had no such case. Read as
may, we could not find any averment from the Original
Application by which the applicant had raised grounds of mala
fides in attack to the order of premature retirement. Even
otherwise, no officer was impleaded in his personal capacity to
sustain the plea of mala fides. Therefore, it is evidently clear
that the Tribunal abdicated while considering the application
filed by the respondent/applicant.
13. In so far as the contention of the applicant that the
Supreme Court in Captain Pramod Kumar Bajaj (supra)
absolute right of the Government to retire an employee could
be found under the Rules, insofar as the 2 nd requirement is
concerned, i.e. in public interest, is lacking on facts of the
present case, it is to be noted that the court cannot substitute
the wisdom of the employer on a consideration of his/her
efficiency bar or ineffectiveness beyond the prescribed age. It
is further pointed out that prior notice of at least three months
OP(CAT) 207/2023
is also required for the outgoing employee before the
Government could decide to retire him/her from service.
However, we cannot subscribe to the argument raised by the
learned counsel for the respondent/applicant especially when,
the limitation of judicial power in this area is well known and
our examination if confined to see whether there is material to
see as to whether a rationale mind would be conceivably
satisfied that compulsory retirement of the officer concerned is
necessary in the public interest. Moreover, the confidential
reports are often subjective, impressionistic and must receive
sedulous checking as the basis for decision making. The
appropriate authority, nor the court, should take the decision
even though there is a caveat to avoid misuse. We are also not
impressed by the argument of the learned counsel for the
respondent/applicant that the applicant had no disciplinary
enquiry within a period of five years before her retirement.
The result of the discussion leads to an irresistible
conclusion that the order of the Tribunal is unsustainable and
requires interference in exercise of the powers of this Court
OP(CAT) 207/2023
under Article 227 of the Constitution of India. Accordingly,
Ext.P1 order dated 11.9.2023 in O.A.No.461/2022 of the
Central Administrative Tribunal, Ernakulam Bench is hereby set
aside. The Original Petition is allowed. Original Application
would thus stand dismissed. No order as to costs.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
jg
OP(CAT) 207/2023
APPENDIX OF OP (CAT) 207/2023
PETITIONER ANNEXURES
Exhibit P1 A TRUE COPY OF THE JUDGMENT DATED 11.09.2023 IN
O.A NO. 461/2022 OF THE HON'BLE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
Exhibit P2 A TRUE COPY OF ORIGINAL APPLICATION NO. 461/22
FILED BY THE RESPONDENT BEFORE THE HON'BLE
TRIBUNAL ALONG WITH ITS ANNEXURES
Annexure A1 THE TRUE COPY OF THE ORDER BEARING NO.
F.NO.12/15/2022-SERVICES/1586 DATED 03/08/2022
ISSUED BY THE SECOND RESPONDENT.
Annexure A2 THE TRUE COPY OF THE ORDER BEARING
F.NO.12/11/2012 - SERVICES/883 DATED 29/4/2022
ISSUED BY THE FOURTH RESPONDENT
Annexure A3 THE TRUE COPY OF THE COMPLAINT DATED 22/3/2022
FILED BY THE APPLICANT BEFORE THE FIRST
RESPONDENT
Annexure A4 THE TRUE COPY OF THE EXPLANATION NOTICE DATED
25/3/2022 ISSUED BY THE SUPERINTENDENT OF POLICE;
KAVARATTI TO THE APPLICANT
Annexure A5 THE TRUE COPY OF THE EXPLANATION DATED 30/3/2022
SUBMITTED BY THE APPLICANT AS AGAINST THE
ANNEXURE A4 SHOW CAUSE NOTICE
Annexure A6 THE TRUE COPY OF THE REPRESENTATION DATED
4/5/2022 SUBMITTED BY THE APPLICANT BEFORE THE
THIRD RESPONDENT
Annexure A7 THE TRUE COPY OF THE REPRESENTATION DATED
17/5/2022 SUBMITTED BY THE APPLICANT BEFORE THE
HONOURABLE ADMINISTRATOR
Annexure A8 THE TRUE COPY OF THE ORDER BEARING NO F.NO.
12/15/2022- SERVICES/1040 DATED 24/5/2022 ISSUED
BY THE FOURTH RESPONDENT WHEREBY THE APPLICANT IS
RETIRED FROM SERVICE
Annexure A9 THE TRUE COPY OF THE ORDER DATED 16/06/2022 IN
O.A. NO. 181/00283/2022 ON THE FILES OF THIS
HON'BLE TRIBUNAL
Annexure A10 THE TRUE COPY OF THE REPRESENTATION DATED
20/06/2022 SUBMITTED BY THE APPLICANT BEFORE THE
SECOND RESPONDENT
Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE
PETITIONERS DATED 17.10.2022
Annexure R1(a) TRUE COPY OF THE ORDER ON F.NO.12/15/2022-
SERVICES/1040 DATED 24.05.2022
OP(CAT) 207/2023
Annexure R1(b) TRUE COPY OF THE OM NO.25013/03/2019 -ESTT.A-IV
DATED 28TH AUGUST,2020
Annexure R1(c) TRUE COPY OF THE ORDER F.NO.12/24/2020 -
SERVICES(2)/1625 DATED 26.08.2021
Annexure R1(d) TRUE COPY OF THE MINUTES OF THE MEETING OF REVIEW
COMMITTEE HELD ON 01.04.2022
Annexure R1(e) TRUE COPY OF THE F.NO.12/15/2022- SERVICES/1342
DATED 01.07.2022
Annexure R1(f) TRUE COPY OF THE REPRESENTATION DATED 22.06.2022
OF THE SMT. P.P. HAJAROMMABI
Annexure R1(g) TRUE COPY OF THE MINUTES OF THE REPRESENTATION
COMMITTEE MEETING HELD ON 06.07.2022
Annexure R1(h) TRUE COPY OF THE ORDER
F.NO.12/15/2022-SERVICES/1586 DATED 3.08.2022
Annexure R1(i) TRUE COPY OF THE TRANSFER POLICY OF THE
ADMINISTRATION OF UT OF LAKSHADWEEP ISSUED VIDE
F.NO.12/03/2012- SERVICES DATED 07.03.2012
Annexure R1(j) TRUE COPY OF THE ORDER F.NO.12/11/2012 -
nSERVICES/883 DATED 29.04.2022
Annexure R1(k) TRUE COPY OF THE FINAL SENIORITY LIST OF VARIOUS
GRADES OF STAFF CAR DRIVERS 2022
Annexure R1(l) TRUE COPY OF THE OM F.NO.12/61/2001- SERVICES
(VOL.IV)(2)/1362 DATED 05.07.2022
Annexure R1(m) TRUE COPY OF THE REPORT OF LOCAL COMPLAINT
COMMITTEE ALONG WITH THE MINUTES OF THE COMMITTEE
MEETINGS HELD ON 09.04.2022 AND 11.04.2022
Exhibit P4 A TRUE COPY OF THE REJOINDER DATED 18.01.2023
FILED BY THE RESPONDENT BEFORE THE HON'BLE
Exhibit P5 A TRUE COPY OF THE MEMO FOR PRODUCTION OF
DOCUMENTS DATED 05.07.2023 ENCLOSING ANNEXURE
R1(M) TO ANNEXURE R1(O) DOCUMENTS
Document No
COPY OF THE OFFICE NOTE
R1(m)
Document No.
COPY OF THE REPORT OF THE LOCAL COMMITTEE
R1(n)
Document No. COPY OF THE MINUTES OF THE LOCAL COMPLAINT
R1(o) COMMITTEE
Exhibit P6 A TRUE COPY OF THE ENQUIRY REPORT UNDER RULE 14
OF THE CCS(CCA) RULES SUBMITTED BY THE INQUIRY
AUTHORITY ON 27.02.2017 BEFORE THE COMPETENT
AUTHORITY
