Orissa High Court
Laxman Kumar Pradhan vs State Of Odisha on 4 November, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.12265 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Laxman Kumar Pradhan
Aged about 56 years
Son of Late Jagabandhu Pradhan
At: Bhaskarganj (A)
Sailesh Lane, Station Road
Balasore - 756 001
Town & District: Balasore. ... Petitioner
-VERSUS-
1. State of Odisha
Represented through
Secretary to Government of Odisha
Forest & Environment Department
Lok Seva Bhawan, Odisha Secretariat
Bhubaneswar - 751 001
District: Khurda.
2. Principal Chief Conservator of Forests
Odisha,
At: Aranya Bhawan
Plot No.G.A.-42/D, Chandrasekharpur
Bhubaneswar - 751 023
District: Khurda.
3. The Field Director
Similipal Tiger Reserve-cum-RCCF
Baripada, At/P.O.: Baripada
District: Mayurbhanj. ... Opposite Parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Sidheswar Mallik,
Prahallad Chandra Das,
Mamata Mallik,
Sidharth Mallick
Advocates
For the Opposite parties : Ms. Sailaza Nandan Das,
Additional Standing Counsel
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 05.07.2024 :: Date of Judgment : 04.11.2024
J UDGMENT
The petitioner has come up before this Court craving
to invoke extraordinary jurisdiction of this Court
under Articles 226 and 227 of the Constitution of
India by way of filing this writ petition with the
following prayer(s):
"On the aforesaid facts and circumstances, the Hon‟ble
Court may graciously be pleased to:
(i) Quash the impugned Order dated 20.01.2021 as
at Annexure-7 with a concurrent direction the
petitioner shall be allowed to continue in service
with all consequential service and monetary
benefits;
(ii) Pass such other orders/direction as the Hon‟ble
Court may deem fit and proper in the interest of
justice.
And for this act of kindness, the petitioner as in duty
bound shall ever pray."
Facts:
2. The writ petitioner disclosed that he was promoted to
the rank of Assistant Conservator of Forests, OFS,
Group-A (Junior Branch) on ad hoc basis while he was
working as Forest Ranger by virtue of Forest and
Environment Department Notification No.20844-- FE-
FE2-FE-0025-2018/F&E, dated 26.09.2018.
2.1. While he was posted as Assistant Conservators of
Forests, In-Charge of Kuldiha Wildlife Range, Balasore
Wildlife Division a Memorandum of Charge vide Memo
No.19407/F&E, dated 17.10.2019 was served with a
proposal to conduct inquiry under Rule 15 of the
Odisha Civil Services (Classification, Control and
Appeal) Rules, 1962 (―OCS (CCA) Rules‖, for brevity)
against him on the charges of negligence in duty,
suppression of facts and disobedience of instruction of
higher authorities for being violation of the provisions
of the Odisha Government Servants' Conduct Rules,
1959.
2.2. By Office Order dated 20.02.2020 the petitioner for
such alleged charges was placed under suspension in
exercise of power under Rule 12 of the OCS (CCA)
Rules.
2.3. Subsequent thereto, while he was under suspension,
the petitioner was served with another Memorandum
of Charge vide Memo No.3912, dated 19.11.2020 with
proposal to hold inquiry under Rule 15 of the OCS
(CCA) Rules on the charges of failure to maintain
absolute integrity and dereliction in duty.
2.4. A criminal case registered as Balasore Vigilance P.S.
Case No.13 of 2020 under Section 13(2) read with
Section 13(1)(b) and Section 12 of the Prevention of
Corruption Act, 1988 was initiated.
2.5. While the matter stood thus, invoking provisions of
Rule 71(a) of the Odisha Service Code (―OSC‖, for
short) the Forest and Environment Department has
issued Office Order vide No.1354-- FE-FE2-FE-0001-
2021/F&E, dated 20.01.2021 retiring the petitioner
from service with effect from 21.01.2021 on attaining
56 years of age allowing three months' pay and
allowances in lieu of three months' notice.
2.6. Said order of premature retirement is subject matter of
challenge in the instant writ petition.
Counter affidavit of the opposite parties:
3. Laying stress on the Minutes of Meeting of the Review
Committee held on 18.01.2021 comprising Principal
Chief Conservator of Forests & HoFF, Odisha,
Representative of General Administration and Public
Grievance Department, Joint Secretary to Government
(in-Charge of the Establishment) and Under Secretary,
Forest and Environment Department under the
Chairmanship of Additional Chief Secretary to
Government of Odisha in Forest and Environment
Department, the opposite parties sought to justify the
recourse to exercise power under Rule 71 of the OSC
to get the petitioner retired prematurely.
3.1. The contents of the minutes run as follows:
"Laxman Pradhan, ACF:
1. A Lokayukta Case 30/2019 was registered
against Sri Laxman Pradhan Pradhan based on a
complaint alleging serious corruption by him. In
pursuance to Order dated 17.09.2019 of Hon‟ble
Lokayukta, Odisha, Balasore Vigilance File No.47,
dated 04.10.2019 was initiated against him. He
was placed under suspension vide Office Order
No.3976/F&E, dated 20.02.2020. Basing on the
report of Superintendent of Police, Vigilance,
Balasore and on the recommendation of General
Administration (Vigilance) Department, a
disciplinary proceeding was initiated against him
for acquisition of costly immovable/movable
assets without obtaining prior permission from the
competent authority wherein the following charges
were framed:
(1) Failure to maintain absolute integrity,
(2) Dereliction in Duty.
2. During his incumbency as ACF, In-Charge,
Kuldiha Wildlife Range of Balasore Wildlife
Division the putrefied carcass one male elephant
was detected in his range where the tusks were
removed from the body. For this irregularity a
Disciplinary Proceeding was drawn up against
him vide Memorandum No.19406/F&E,
dt.17.10.2019 wherein the following charges were
framed against him
1- Severe negligence in duty,
2- Suppression of facts
3- Disobedience of instruction of higher
authorities.
3. He has already completed 56 years of age.
4. Sri Laxman Kumar Pradhan has many complaints
against him for corruption misconduct and his
integrity is highly doubtful. His continuance in
service will be detrimental to public interest.
***
While deliberating on the above cases in light of proviso
to clause (a) of Rule 71 of the Odisha Service Code the
Committee also took into account paragraph 13(iii) of
the General Administration & Public Grievance
Department Circular issued on 24.09.2019 which
explains that reports of conduct unbecoming of a
Government servant may also form the basis for pre-
mature retirement.
This constitutes the basis for consideration of premature
retirement of the above two officers on the grounds that
their conduct is highly unbecoming of a Government
servant. Their further continuance will not be in public
interest as it lowers the image of Government in the
eyes of public, thereby compromising efficiency in public
service.
In view of the above, the Review Committee
recommended for premature retirement of the above
officers on paying three months‟ pay allowances in lieu
of statutory notice of three months."
3.2. Refuting the averments and contentions of the
petitioner as set up in the writ petition, the opposite
parties affirmed that there was adequate and sufficient
material available before the Review Committee to
come to conclude that the case of the petitioner was a
fit one to invoke provisions of Rule 71 of the OSC.
Hearing:
4. Since at the age of 56 years, the petitioner was made
to retire prematurely and the pleadings are completed,
at the stage of admission, on consent of learned
counsel for respective parties, this matter is taken up
for final hearing.
4.1. Heard Sri Sidheswar Mallik, learned Advocate for the
petitioner and Sri Sailaza Nandan Das, learned
Additional Standing Counsel.
4.2. On conclusion of hearing on 05.07.2024, the matter is
reserved for preparation and pronouncement of
judgment.
Contentions and submissions of respective parties:
5. Sri Sidheswar Mallik, learned Advocate appearing for
the petitioner submitted that though on two different
contexts departmental proceedings were initiated, till
date no enquiry got concluded. He further submitted
that in the criminal case, though preliminary
investigation is stated have been completed, final
investigation is in progress.
5.1. He, therefore, asserted that undue haste has been
shown by the opposite parties in taking a decision to
recommend the Government of Odisha to invoke
provisions of Rule 71 of the OSC. The Order of
premature retirement dated 20.01.2021 is
unwarranted and the petitioner, who was under
suspension, is liable to be restored in service.
5.2. Sri Sidheswar Mallik, learned Counsel argued on the
following points:
i. Since the petitioner had crossed the age of 55
years on the date of review by the Committee, as
it is apparent from the record that the petitioner
had already attained the age of 56 years, the
decision could not have been taken being
contrary to paragraph 8 of the Guidelines for
premature retirement of Government servants to
weed out officers and employees of doubtful
integrity or inefficiency from public service to
ensure efficiency in administration vide File
No.27037-GAD-SC-GCS-0089-2016/Gen., dated
24.09.2019 (for short, ―Guidelines‖).
ii. Since departmental proceedings had already
been instituted and the investigation in criminal
case was set in motion, invocation of Rule 71(a)
of the OSC is premature, being subterfuge device
adopted by the Government of Odisha
inconsistent with paragraph 9 of the Guidelines.
iii. Since investigation in the vigilance case was in
progress, branding the petitioner having ―lack of
integrity‖, no action could have been taken under
Rule 71 of the OSC. Such power being exercised,
the same is contradictory to paragraph 15 of the
Guidelines.
iv. The Review Committee was supposed to take into
consideration entire service record and inasmuch
as no adverse remarks had ever been
communicated to the petitioner, the decision
taken for retiring him prematurely being on the
basis of extraneous material, the same cannot be
sustained in the eye of law.
v. No reason being assigned by the Review
Committee, the Office Order dated 20.01.2021
(Annexure-7) accepting the recommendation of
the Review Committee is liable to be set aside
vi. As pay and allowance in lieu of three months'
notice contemplated under Rule 71 of the OSC
was not paid simultaneously with issue of the
Office Order dated 20.01.2021 (Annexure-7), the
same gets vitiated and is liable to be treated non
est in the eye of law.
6. Sri Sailaza Nandan Das, learned Additional Standing
Counsel, would submit that:
i. As per Guidelines dated 24.09.2019, Review
could be conducted at three stages, viz.:
a. after completion of 30 years of service; or
b. on attaining 50 years of age; and
c. on attaining 55 years of age.
In the instant case, the Review Committee took
decision for premature retirement on the
petitioner having attained 55 years.
ii. Since the allegations of grave nature are against
the petitioner as is apparent from the
Memorandum of Charges as also the vigilance
case, in the public interest decision has been
taken by the Review Committee that his retention
in service would be detrimental and his integrity
being doubtful appropriate decision has been
taken to get the petitioner retired prematurely.
iii. Paragraph 17 of the Guidelines does not interdict
payment of three months' pay and allowances
after order of premature retirement is made
effective. In fact the petitioner was given three
months' pay and allowances which is manifest
from Annexure-A/1 series enclosed to the
counter affidavit.
6.1. Sri Sailaza Nandan Das, learned Additional Standing
Counsel vehemently contended that no reason need be
assigned in the Office Order directing premature
retirement of the petitioner. He further submitted that
other legal issues raised by the counsel for the
petitioner need no elaborate argument as the law in
this regard has been settled.
Relevant provisions:
7. Rule 71 of the Odisha Service Code reads as under:
"71. Retirement of Government servant.--
(a) Except as otherwise provided in the other clause of
this Rule the date of compulsory retirement of
Government servant, except a ministerial servant
who was in Government servant on the 31st March,
1939 and Class-IV Government servant, is the date
on which he or she attains the age of 58 years
subject to the condition that a review shall be
conducted in respect of the Government servant in
the 55 years of the age in order to determine
whether he or she should be allowed to remain in
service up to the date of the completion of the age of
58 years or retired on completing the age of 55
years in public interest:
Provided that a Government servant may be retired
from service any time after completing 30 years‟
qualifying service OR on attaining the age of
fifty years, by giving a notice in writing to the
appropriate authority at least three months before
the date of which he wishes to retire or by giving
the said notice to the said authority before such
shorter period as Government may allow in any
case.
It shall be open to the appropriate authority to
withhold permission to a Government servant who
seek to retire under this rule, if he is under
suspension or if enquiries against him are in
progress.
The appropriate authority may also require
any officer to retire in public interest any time
after he has completed thirty years‟ qualifying
service or attained the age of fifty years, by
giving a notice in writing to the Government
servant at least three months before the date
on which he is required to retire or by giving
three months‟ pay and allowances in lieu of
such notice:
Provided further that the Allopathy Medical Officers
belonging both periphery and Teaching Cadre
under Health and Family Welfare Department shall
be retained in service up to the age of sixty years."
7.1. Rules 13 and 15 of the OCS(CCA) Rules stand thus:
"13. Nature of penalties.--
The following penalties may, for good and
sufficient reasons and as hereinafter provided, be
imposed on a Government servant, namely:
(i) fine;
(ii) censure;
(iii) withholding of increments
(without cumulative effect)
(iii-A) withholding of promotion;
(iv) recovery from pay of the whole, or part of
any pecuniary loss caused to Government, or
to a company, association or body of
individuals, whether incorporated or not,
which is wholly or substantially owned or
controlled by Government, or to a local
authority set up by an Act of Parliament or of
the Legislature of a State, by negligence or
breach of orders.
(v) suspension;
(vi) reduction to a lower service, grade or post or
to a lower time-scale or to a lower stage in a
time scale;
(vi-A) withholding of increments
(with cumulative effect)
(vii) compulsory retirement;
(viii) removal from service which shall not be a
disqualification for future employment;
(ix) dismissal from service which shall ordinarily
be a disqualification for future employment:
Provided that the penalty of fine shall be imposed
only on Group-D Government servants.
Explanation.--
The following shall not amount to a penalty
within the meaning of this Rule--
(a) Withholding of increments of a Government
servant for failure to pass a departmental
examination in accordance with the rules or
orders governing the service or post or the
terms of his appointment.
(b) Stoppage of a Government servant at the
efficiency bar in the time scale on the ground
of his unfitness to cross the bar.
(c) Non-promotion, whether in a substantive or
officiating capacity, of a Government servant,
after consideration of his case, to a service,
grade or post for promotion to which he is
eligible.
(d) Reversion to a lower service, grade or post of
a Government servant officiating in a higher
service grade or post on the ground that he is
considered, after trial, to be unsuitable for
such higher service, grade or post, or on
administrative grounds unconnected with his
conduct.
(e) Reversion to his permanent service, grade or
post of a Government servant appointed on
probation to another service, grade or post
during or at the end of the period of
probation in accordance with the terms of his
appointment or the rules and orders
governing probation.
(f) Replacement of the services of a Government
servant whose services have been borrowed
from the Central or State Government or an
authority under the control or a State
Government at the disposal of the authority
which had lent his services.
(g) Compulsory retirement of a Government
servant in accordance with the provision
relating to his superannuation or
retirement.
(h) Termination of the services--
(i) of a Government servant appointed on
probation during or at the end of the
period of probation in accordance with
the terms of his appointment or the
rules and orders governing probation;
or
(ii) of a temporary Government servant in
accordance with the terms of his
appointment; or
(iii) of a Government servant employed
under an agreement in accordance with
the terms of such agreement.
15. Procedure for imposing penalties.--
(1) Without prejudice to the provisions of the
Public Servant (Inquiry) Act, 1950, no order
imposing on a Government servant any of the
penalties specified in Clauses (vi) to (ix) of
Rule 13 shall be passed except after an
inquiry held as far as may be in the manner
hereinafter provided.
(2) The disciplinary authority shall frame
definite charges on the basis of the
allegations on which the inquiry is to be held.
Such charges, together with a statement of
the allegations on which they are based,
shall be communicated in writing to the
Government servant and he shall be required
to submit, within such time as may be
specified by the disciplinary authority, not
ordinarily exceeding one month a written
statement of his defence and also to state
whether he desires to be heard in person.
Explanation.--
In this sub-rule and in sub-rule (3) the
expression Disciplinary Authority shall
include the authority competent under these
rules to impose upon the Government servant
of the penalties specified in Clauses (i) to (v)
of Rule 13.
(3) The Government servant shall, for the
purpose of preparing his defence, be
supplied with all the records on which the
allegations are based. He shall also be
permitted to inspect and take extracts from
such other official records as he may specify,
provided that such permission may be
refused if, for reasons to be recorded in
writing in the opinion of the disciplinary
authority such records are not relevant for
the purpose or it is against interest of the
pubic to allow him access thereto.
(4) On receipt of the written statement of defence
or if no such statement is received within the
time specified, the disciplinary authority may
itself enquire into such of the charges as are
not admitted or, if it considers it necessary
so to do, appoint a board of inquiry or an
enquiring officer for the purpose.
Provided that if, after considering the written
statement of defence, the disciplinary
authority is of the view that the facts of the
case do not justify the award of a major
penalty, it shall determine after recording
reasons thereof, what other penalty or
penalties, if any, as specified in Clauses (i) to
(v) of Rule 13 should be imposed and shall
after consulting the Commission, where such
consultation is necessary, pass appropriate
order.
(5) The disciplinary authority may nominate any
person to present the case in support of the
charges before the authority inquiring into
the charges (hereinafter referred to as the
„inquiring authority‟). The Government
servant shall have the right to engage a legal
practitioner to present his case if the person
nominated by the disciplinary authority, as
aforesaid, is a legal practitioner. The
inquiring authority may also having regard to
the circumstances of the case, permit the
Government servant to be represented by a
legal practitioner.
(6) The inquiring authority shall, in the course of
the inquiry, consider such documentary
evidence and take such oral evidence as may
be relevant or material in regard to the
charges. The Government servant shall be
entitled to cross-examine witnesses
examined in support of the charges and to
give evidence in person. The person
presenting the case in support of the charges
shall be entitled to cross-examine the
Government servant and the witnesses
examined in his defence. If the inquiring
authority declines to examine any witness on
the ground that his evidence is not relevant
or material, it shall record its reason in
writing.
(7) At the conclusion of the inquiry the inquiring
authority shall prepare a report of the
inquiry, recording its findings on each of the
charges together with reasons thereof. If, in
the opinion of such authority, the
proceedings of the inquiry establish charges
different from those originally framed, it may
record its findings on such charges, provided
that the findings on such charges shall not
be recorded, unless the Government servant
has admitted the facts constituting them or
has had an opportunity of defending himself
against them. The inquiring authority may
recommend the punishment to be inflicted
when the charges are establishment on the
findings.
(8) The record of inquiry shall include--
(i) the charges framed against the
Government servant and the statement
of allegations furnished to him under
sub-rule (2);
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the course of
the inquiry;
(iv) the documentary evidence considered
in the course of the inquiry;
(v) the orders, if any, made by the
disciplinary authority and the inquiring
authority in regard to the inquiry;
(vi) a report setting out the findings on each
charge and the reasons therefor; and
(vii) the recommendations of the inquiring
authority, if any, regarding the
punishment to be inflicted.
(9) The disciplinary authority, may, for reasons
to be recorded by it in writing, remit the case
to inquiring authority for further inquiry and
report, and the inquiring authority shall there
upon proceed to hold the further inquiry
according to the provisions of sub-rule (6) of
Rule 15 as far as may be.
(9A) The disciplinary authority shall, if it is not
the inquiring authority, consider the record of
the inquiry and record its findings on each
charge.
(10) (i) (a) If the inquiring officer is not the
disciplinary authority, the
disciplinary authority shall furnish
to the delinquent Government
servant a copy of the report of the
inquiring officer and give him
notice by registered post or
otherwise calling upon him to
submit within a period of fifteen
days such representation as he
may wish to make against
findings of the Inquiring Authority.
(b) On receipt of the representation
referred to in Sub-clause (a) the
disciplinary authority having
regard to the findings on the
charges, is of the opinion that any
of the penalties specified in
Clauses (vi) to (ix) of Rule 13
should be imposed, he shall
furnish to the delinquent
Government servant a statement
of its findings along with brief
reasons for disagreement, if any,
with the findings of the inquiring
officer and give him a notice by
Registered post or otherwise
stating the penalty proposed to be
imposed on him and calling upon
him to submit within a specified
time such representation as he
may wish to make against the
proposed penalty:
Provided that in every case in
which it is necessary to consult
the Commission under the
provision of the Constitution of
India and the Odisha Public
Service Commission (Limitation of
Functions) Regulation, 1989 the
record of Inquiry together with a
copy of the notice given under sub-
clause (a) and the representation
if any, received within the
specified time in response to such
notice shall be forwarded by the
disciplinary authority to the
Commission for its advice.
(c) On receipt of the advice from the
Commission the disciplinary
authority shall consider the
representation, if any, made by
the Government Servant and the
advice given by the Commission
and shall pass appropriate orders
in the case.
(d) In any case in which it is not
necessary to consult the Odisha
Public Service Commission, the
disciplinary authority shall
consider the representation, if
any, made by the Government
servant in response to the notice
under sub-clause (b) and pass
appropriate order in the case.
Provided that in every case in
which it is necessary to consult
the Commission under the
provision of the Constitution of
India and the Odisha Public
Service Commission (Limitation of
functions) Regulation, 1989, the
record of inquiry together with
copies of the notices given under
Sub-clauses (a) and (b) and the
representations, if any, received in
response thereto within the
specified time shall be forwarded
by the disciplinary authority to the
Commission for its advice.
(ii) The orders passed by the disciplinary
authority shall be communicated to the
Government servant, who shall also be
supplied with a copy of the report of
inquiring authority and where the
disciplinary authority is not the
inquiring authority, a statement of its
findings together with brief reasons for
disagreement, if any, with the findings
of the inquiring authority, as well as a
copy of the advice of the Commission,
where the Commission had been
consulted, and brief statement of
reasons for non-acceptance of the
advice of the Commission, if the
disciplinary authority has not accepted
such advice.
(11) [***]
(12) [***]
Guidelines for premature retirement of
Government servants to weed out officers and
employees of doubtful integrity or inefficiency
from public service to ensure efficiency in
administration vide File No.27037-GAD-SC-GCS-
0089-2016/Gen., dated 24.09.2019:
"***
2. In the meanwhile, different judicial
pronouncements have been delivered based upon
new ideas and principles to consider premature
retirement on the ground of doubtful integrity or
inefficiency. It is accordingly decided by the
Government to prescribe the following instructions
afresh by superseding the instructions issued
earlier in General Administration and Public
Grievance Department Circular No.30495 dated
24.11.1987.
3. With a view to ascertain whether the Government
servant would be retained in service or retired
from service in the public interest, there is
absolute need for periodical review of performance
of Government servants. Provisions in this regard
are contained under proviso to clause (a) of Rule
71 of Odisha Service Code. Government have
accordingly decided that the following
instructions/procedures shall henceforth be
followed by the authorities empowered to conduct
reviews or issue orders retiring an employee
prematurely as provided in the Proviso to Clause
(a) of Rule 71 of the Odisha Service Code, on his
completing 30 years of qualifying service of
attaining 50 years of age and on his attaining 55
years of age.
4. The cases of Group-A & Group-B Officers on their
completing 30 years of qualifying service or
attaining 50 years of age and on their attaining 55
years of age, as the case may be, on the 31st
March, 30th June, 30th September and the 31st
December of a year shall be reviewed by the
Review Committees constituted in pursuance of
these instructions. Similarly the cases of Group-C
Officers and Group-D employees shall be reviewed
on the 30th June and the 31st December of the
year by the relevant Review Committee.
***
6. The criteria to be followed by the Committee in
making their recommendations would be as
follows:
(a) Government employees whose integrity is
doubtful, will be retired.
(b) Government employees who are found to be
ineffective will also be retired. The basic
consideration in identifying such employees
should be the fitness/competence of the
employees to continue in the post which
he/she is holding.
(c) While the entire service record of an Officer
should be considered at the time of review,
no employee should ordinarily be retired on
grounds 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 higher
post, has been found satisfactory.
Consideration is ordinarily to be confined to
the preceding 5 years or to the period in the
higher post, in case of promotion within the
period of 5 years, only when retirement is
sought to be made on grounds of
ineffectiveness.
(d) Ordinarily no employee should be retired on
grounds of ineffectiveness if he is retiring on
superannuation within a period of one year
from the date of consideration of the case. It
is clarified that in a case where there is a
sudden and steep fall in the competence,
efficiency or effectiveness of an officer, it
would be open to review his case for
premature retirement in the year preceding
retirement.
The above instruction is relevant only when an
employee is proposed to be retired on the ground
of ineffectiveness, but not on the ground of
doubtful integrity. The damage to public interest
could be marginal if an old employee, in the last
year of service, is found ineffective; but the
damage may be incalculable if he is found corrupt
and demands or obtains illegal gratification during
the said period for the tasks he is duty bound to
perform.
7. The cases of Government servants covered under
paragraph 4 above should be reviewed six months
before their completing 30 years of qualifying
service or attaining 50 years of age and on their
attaining 55 years of age, as the case may be as
per the following time schedule. ***
8. Once an employee‟s case has been reviewed and
he has been found by the competent authority to
be deserving of continued employment after
attaining 50 years of age, there shall be no further
review of his case till he attains 55 years of age.
Similarly, the case of an employee who was not
prematurely retired in pursuance of the review
conducted on his attaining 55 years of age shall
not be reviewed thereafter. If, however, review
was deferred or not conducted, the case may be
reviewed in the meeting held after records were
available.
9. Premature retirement can be ordered in public
interest only and not as a penalty to the employee
concerned. Compulsory retirement is one of the
major penalties listed under Rule 13 of the Odisha
Civil Services (Classification, Control & Appeal)
Rules, 1962 and before it is imposed on any
employee, the procedure outlined in the said Rules
for imposition of major penalties must be complied
with. Premature retirement under Clause (a) of
Rule 71 of the Odisha Service Code is not and
must not be used as a substitute that can be
resorted to more conveniently. In other words,
where it appears that any employee is guilty of
misconduct or negligence in duty and that he
would probably have been compulsorily retired
had disciplinary proceedings been initiated
against him, the proper course would be to initiate
such proceeding instead of trying to circumvent
the prescribed procedure and thereby
extinguishing the employee‟s right of defending
himself against the charge of misconduct or
negligence. Premature retirement can only be
ordered where it is obvious that retention of the
employee in service will not be in public interest.
10. It will not be in public Interest to retain an
employee in service if--
(a) he is clearly lacking in integrity, or
(b) although his integrity is not in doubt, his
physical or mental condition is such as to
make him inefficient for further service, or
(c) even though his work in a lower grade was
satisfactory, he clearly lacks in standard of
efficiency required to discharge the duties of
the post he presently holds.
11. The objective of the review is to weed out persons
of doubtful integrity or inefficiency from public
service. In order however that no such decision is
taken arbitrarily or without very careful appraisal
of facts, the Review Committee shall, wherever it
recommends premature retirement of an employee,
record the reasons of its findings in adequate
detail.
***
13. (i) In every review, the Committee in each case
shall consider the entire service record. The
expression „service record‟ implies all
relevant records and hence the review need
not be confined to the consideration of
ACR/PAR dossier. The personal file of the
Officer may contain relevant materials.
Similarly the work and performance of an
Officer can also be assessed by taking into
account the files dealt with by him or any
papers or reports prepared and submitted by
him.
(ii) As far as considering integrity of an
employee is concerned, actions or decisions
taken by the employee which do not appear
to be above board, complaints received
against him or suspicious property
transactions for which there may not be
sufficient evidence to initiate departmental
proceedings, may be taken into account. The
following observations of Hon‟ble Supreme
Court in the case S. Ramachandra Raju Vrs.
State of Odisha1 passed while upholding
compulsory retirement need to be kept in
view at the time of deciding each case.
The officer would live by reputation built
around him. In an appropriate case, there
may not be sufficient evidence to take
punitive disciplinary action of removal from
service. But his conduct and reputation is
such that his continuance in service would be
a menace to public service and injurious to
public interest."
(iii) The reports of conduct unbecoming of a
Government servant may also form the basis
for compulsory retirement. As per the
judgment of Hon‟ble Supreme Court in State
of U.P. and others Vrs. Vijay Kumar Jain,
Appeal (Civil) 2083 of 20022:
„If conduct of a Government employee
becomes unbecoming to the public interest or
obstructs the efficiency in public services, the
Government has an absolute right to
compulsorily retire such an employee in
public interest.‟
1 S. Ramachandra Raju Vrs. State of Odisha, (1994) Supp (3) SCC 424 = (1994)
Supp.2 SCR 828.
2 State of U.P. Vrs. Vijay Kumar Jain, (2002) 3 SCC 641 = (2002) 2 SCR 439.
***
15. It seems to be the practice in some organizations
to consult the General Administration (Vigilance)
Department with a view to ascertaining if any
enquiry into the integrity of employees whose
cases are due for review is under way. For
purposes of the review, facts already available on
the date of the review should alone be taken into
account. If the General Administration (Vigilance)
Department has already submitted a report about
any employee, that report can no doubt be taken
in to account, but to consider enquires that have
not been completed will amount to prejudging the
issue. If the enquiry ultimately leads to a
reasonable inference of lack of integrity, the
employee concerned can be proceeded against
either departmentally or under the criminal law,
but it would not be correct to conclude that an
employee is lacking in integrity merely because
some allegations against him are under enquiry.
In other words, allegations which have not been
enquired into or in respect of which enquiry is not
complete should, generally speaking, be ignored.
Even in regard to allegations which have been
enquired into by the Vigilance Organisation, a
conclusion of lack of integrity may not be drawn
straightway, the facts of the case should be
carefully considered and it should be examined if
the ends of justice will not be better served by a
departmental proceeding. The Rule, normally
should be that before any such conclusion is
drawn, the explanation of the employee concerned
should have been considered. It is only in
exceptional cases, for example cases where the
employee‟s lack of integrity is obvious, that the
review may be conducted without considering his
explanation and on the basis of an exhaustive
report of enquiry by the Vigilance Organisation or
any senior officer. This exception to the normal
rule should be invoked only where the Committee
is satisfied that the allegations are serious and
beyond doubt and that public interest requires the
employee‟s immediate exit from service.
***
17. Where it is decided to retire an employee
prematurely, he has either to be given a notice in
writing at least three months before the date on
which he/she is required to retire or paid three
months‟ pay and allowance in lieu of such notice
(Annexures-II, III, IV and V, as the case may be).
***
19. Since no stigma is attached to an employee retired
prematurely, his service should be certified as
satisfactory for purposes of pension, while
preparing pension documents of any such
employee, the following instructions may be kept
in view:
(a) Where an employee is served with a notice,
he will be deemed to have retired on the date
following the date on which the period of 3
months from the date of the service of the
notice expires, if, for example, the period of 3
months following the service of the notice
expires on the 5th of any month, the
employee would be deemed to have retired
with effect from the 6th of that month.
(b) Where, in lieu of notice 3 months‟ pay and
allowance (no allowance other than
Dearness Allowance is payable) are paid, the
date specified in the order shall be deemed
to be the date on which the employee has
retired.
(c) Since 3 months‟ pay and allowances are
paid in lieu of the notice, the employee will
be entitled to pension from the date specified
in the order in addition to the pay and
allowance paid to him.
(d) The pay and allowances payable in lieu of
the notice will be calculated at rates at which
he/she drew pay and allowances
immediately before retirement.
(e) Earned leave not exceeding 300 days at the
credit of the employee on the date of
premature retirement shall be en-cashed.
(f) The employee will be entitled to draw
Travelling Allowance for journey from the last
station of duty to his home town in
accordance with Rule 120 of the Orissa
Travelling Allowances Rules.
(g) The entitlement of the employee to retain the
official accommodation supplied to him will
be governed by item 2(b) of the Table under
Rule 107A(i) of the Odisha Service Code.
20. It is held by the Hon‟ble Supreme Court that, no
show cause notice need be issued to any
Government servant before a notice of retirement
is issued to him under the aforesaid provisions.
The appropriate authority should bona fide form
an opinion that is in the public interest to retire the
Government servant in exercise of the powers
conferred by that provision and this decision
should not be an arbitrary decision or should not
be based on collateral grounds. Accordingly, in
every case where it is proposed to retire a
Government servant in exercise of the powers
conferred by the said rule, the appropriate
authority should record in the file its opinion that it
is necessary to retire the Government servant in
pursuance of the aforesaid rule in the public
interest. The order to be served on the Government
servant would of course be on the form prescribed
for the purpose.
21. It is accordingly therefore, requested to ensure
holding of Review Committee Meetings regularly
as per these instructions for effective functioning
of Government offices by weeding out persons of
doubtful integrity or patent inefficiency from public
service. Suitable instructions may also be issued
to all the Offices functioning under your control to
hold review meeting positively in scheduled time
without failure.
22. For the purpose of this circular, the
expression "Appropriate Authority" means
the appointing authority."
Legal perspective:
8. Before considering the rival contentions, averments
and contents of the writ petition as well as the counter
affidavit(s) with rejoinder(s), it is apposite to take note
of views expressed by Courts with regard to
compulsory/premature retirement.
8.1. The observation of Hon'ble Supreme Court of India in
Union of India Vrs. M.E. Reddy, (1980) 2 SCC 15 is as
under:
"11. It seems to us that the main object of this rule is to
instil a spirit of dedication and dynamism in the
working of the State Services so as to ensure
purity and cleanliness in the administration which
is the paramount need of the hour as the Services
are one of the pillars of our great democracy. Any
element or constituent of the Service which is
found to be lax or corrupt, inefficient or not up to
the mark or has outlived his utility has to be
weeded out. Rule 16(3) provides the methodology
for achieving this object. We must, however,
hasten to add that before the Central
Government invokes the power under Rule
16(3), it must take particular care that the
rule is not used as a ruse for victimisation by
getting rid of honest and unobliging officers
in order to make way for incompetent
favourites of the Government which is bound
to lead to serious demoralisation in the
service and defeat the laudable object which
the rule seeks to subserve. If any such case
comes to the notice of the Government the officer
responsible for advising the Government must be
strictly dealt with. Compulsory retirement
contemplated by the aforesaid rule is designed to
infuse the administration with initiative and
activism so that it is made poignant and piquant,
specious and subtle so as to meet the expanding
needs of the nation which require exploration of
"fields and pastures new". Such a retirement
involves no stain or stigma nor does it entail any
penalty or civil consequences. In fact, the rule
merely seeks to strike a just balance between the
termination of the completed career of a tired
employee and maintenance of top efficiency in the
diverse activities of the administration.
12. An order of compulsory retirement on one
hand causes no prejudice to the Government
servant who is made to lead a restful life
enjoying full pensionary and other benefits
and on the other gives a new animation and
equanimity to the Services. The employees
should try to understand the true spirit behind the
rule which is not to penalise them but amounts
just to a fruitful incident of the Service made in the
larger interest of the country. Even if the employee
feels that he has suffered, he should derive
sufficient solace and consolation from the fact that
this is his small contribution to his country, for
every good cause claims its martyr.
28. On a consideration of the authorities mentioned
above we are satisfied that there is no legal error
in the impugned order passed by the Government
of India retiring Reddy. It was, however,
contended by counsel for Reddy that reading the
order as a whole it contains an odour of
victimisation, so as to make the order arbitrary.
We are, however, unable to find any material on
the record to show that the order was in any way
arbitrary. The Government of India acted on the
orders passed by the Home Minister concerned
who had considered the report of the Review
Committee in its various aspects. There is nothing
to show that Reddy was victimised in any way.
On the other hand, the history of his service
shows that he was always given his due. He was
taken in the IPS and allotted the year 1952. He
was promoted to the selection grade also at the
proper time. The order of suspension was
withdrawn and the departmental enquiry was
dropped and the officer was reinstated and later
promoted as DIG. These facts completely militate
against the concept of victimisation. It appears
that on an overall consideration of the entire
history of the service of Reddy and the
various stages through which he had passed
it was considered in the interest of
administration and to ensure better initiative
and efficiency to retire him in public interest.
We are also unable to find any element of
arbitrariness in the impugned order. For these
reasons, therefore, the first contention raised by
learned counsel for Reddy must be rejected."
8.2. The observation of Hon'ble Supreme Court of India in
Posts and Telegraphs Board Vrs. C.S.N. Murthy, (1992)
2 SCC 317 is as under:
"It will be clear from the extracts referred to above, that
though the respondent‟s conduct was quite satisfactory
till March 1970, his standard of work had declined in
the last two years under review. In both these years, it
was found that he was not taking adequate interest in
his work and was responsible for delays of various
kinds. As has already been pointed out, an order of
compulsory retirement is not an order of punishment.
F.R. 56(j) 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. 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. No mala fides
have been urged in the present case. The only
suggestion of the High Court is that the record discloses
no material which would justify the action taken
against the respondent. We are unable to agree. In our
opinion, there was material which showed that the
efficiency of the petitioner was slackening in the last
two years of the period under review and it is,
therefore, not possible for us to fault the conclusion of
the department as being mala fide, perverse, arbitrary
or unreasonable. The Division Bench seems to have
thought that, since the adverse remarks mentioned in
the earlier letter of April 29, 1971 were not repeated in
the subsequent letter, it should be taken that they had
been given up subsequently or that the respondent had
improved in the subsequent year. We do not think that
this is a legitimate inference, for the report for 1971-72
only shows that the respondents‟ propensity to delay
matters persisted despite the warning of the previous
year. But, even if one assumes that the High Court
was correct on this, the adverse remarks made
against the respondent in relation to the period
1971-72, standing by themselves, can constitute
sufficient material for the department to come to
a conclusion in the matter. It is true that the
earlier record of the respondent was good but if
the record showed that the standard of work of
the respondent had declined and was not
satisfactory, that was certainly material enabling
the department to come to a conclusion under F.R.
56(j). We are of opinion that the High Court erred in
setting aside the order of compulsory retirement on the
basis that there was no material at all on record
justifying the action against the respondent."
8.3. The observation of Hon'ble Supreme Court of India in
Baikuntha Nath Das Vrs. Chief District Medical Officer,
Baripada, (1992) 2 SCC 299 is as under:
"30. On the above premises, it follows, in our respectful
opinion that the view taken in J.N. Sinha, (1970) 2
SCC 458 = (1971) 1 SCR 791 is the correct one
viz., principles of natural justice are not
attracted in a case of compulsory retirement
under F.R. 56(j) or a rule corresponding to it.
In this context, we may point out a practical
difficulty arising from the simultaneous operation
of two rules enunciated in Brij Mohan Singh
Chopra Vrs. State of Punjab, (1987) 2 SCC 188.
On one hand, it is stated that only the entries of
last ten years should be seen and on the other
hand, it is stated that if there are any adverse
remarks therein, they must not only be
communicated but the representations made
against them should be considered and disposed
of before they can be taken into consideration.
Where do we draw the line in the matter of
disposal of representation? Does it mean, disposal
by the appropriate authority alone or does it
include appeal as well? Even if the appeal is
dismissed, the Government servant may file a
revision or make a representation to a still higher
authority. He may also approach a court or
tribunal for expunging those remarks. Should the
Government wait until all these stages are over?
All that would naturally take a long time by
which time, these reports would also have
become stale. A Government servant so
minded can adopt one or the other
proceeding to keep the matter alive. This is an
additional reason for holding that the principle of
Union of India Vrs. M.E. Reddy, (1980) 2 SCC 15 =
(1980) 1 SCR 736 should be preferred over Brij
Mohan Singh Chopra Vrs. State of Punjab, (1987)
2 SCC 188 and Baidyanath Mahapatra Vrs. State
of Orissa, (1989) 4 SCC 664, on the question of
taking into consideration uncommunicated
adverse remarks.
31. Another factor to be borne in mind is this: most
often, the authority which made the adverse
remarks and the authority competent to retire him
compulsorily are not the same. There is no
reason to presume that the authority
competent to retire him will not act bona fide
or will not consider the entire record
dispassionately. As the decided cases show,
very often, a Review Committee consisting of more
than one responsible official is constituted to
examine the cases and make their
recommendation to the Government. The Review
Committee, or the Government, would not
naturally be swayed by one or two remarks,
favourable or adverse. They would form an
opinion on a totality of consideration of the
entire record-- including representations, if
any, made by the Government servant against
the above remarks-- of course attaching
more importance to later period of his
service. Another circumstance to be borne in mind
is the unlikelihood of succession of officers making
unfounded remarks against a Government
servant.
32. We may not be understood as saying either that
adverse remarks need not be communicated or
that the representations, if any, submitted by the
Government servant (against such remarks) need
not be considered or disposed of. The adverse
remarks ought to be communicated in the normal
course, as required by the rules/orders in that
behalf. Any representations made against them
would and should also be dealt with in the normal
course, with reasonable promptitude. All that we
are saying is that the action under F.R. 56(j) (or
the rule corresponding to it) need not await the
disposal or final disposal of such representation or
representations, as the case may be. In some
cases, it may happen that some adverse remarks
of the recent years are not communicated or if
communicated, the representation received in that
behalf are pending consideration. On this account
alone, the action under F.R. 56(j) need not be held
back. There is no reason to presume that the
Review Committee or the Government, if it chooses
to take into consideration such uncommunicated
remarks, would not be conscious or cognizant of
the fact that they are not communicated to the
Government servant and that he was not given an
opportunity to explain or rebut the same. Similarly,
if any representation made by the Government
servant is there, it shall also be taken into
consideration. We may reiterate that not only the
Review Committee is generally composed of high
and responsible officers, the power is vested in
Government alone and not in a minor official. It is
unlikely that adverse remarks over a number
of years remain uncommunicated and yet
they are made the primary basis of action.
Such an unlikely situation, if indeed present,
may be indicative of malice in law. We may
mention in this connection that the remedy
provided by Article 226 of the Constitution is no
less an important safeguard. Even with its well
known constraints, the remedy is an effective
check against mala fide, perverse or arbitrary
action.
***
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.
(ii) The order has to be passed by the
Government on forming the opinion that it is
in the public interest to retire a Government
servant compulsorily. The order is passed
on the subjective satisfaction of the
Government.
(iii) Principles of natural justice have no
place in the context of an order of
compulsory retirement. This does not
mean that judicial scrutiny is excluded
altogether.
While the High Court or this Court
would not examine the matter as an
appellate court, they may interfere if
they are satisfied that the order is
passed
(a) mala fide or
(b) that it is based on no evidence or
(c) that it is arbitrary-- in the sense
that no reasonable person would
form the requisite opinion on the
given material; in short, if it is
found to be a perverse order.
(iv) The Government (or the Review Committee,
as the case may be) shall have to consider
the entire record of service before taking a
decision in the matter-- of course attaching
more importance to record of and
performance during the later years. The
record to be so considered would naturally
include the entries in the confidential
records/character rolls, both favourable and
adverse. If a Government servant is
promoted to a higher post notwithstanding
the adverse remarks, such remarks lose their
sting, more so, if the promotion is based upon
merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not
liable to be quashed by a Court merely on the
showing that while passing it
uncommunicated adverse remarks were also
taken into consideration. That circumstance
by itself cannot be a basis for interference.
Interference is permissible only on the
grounds mentioned in (iii) above. This aspect
has been discussed in paras 30 to 32 above.
35. *** We are 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."
8.4. The observation of Hon'ble Supreme Court of India in
State of Uttar Pradesh Vrs. Raj Kishore Bhargava, 1992
Supp. (2) SCC 92 is as under:
"3. The High Court seems to be too technical. Three
months‟ salary in lieu of notice was sent by
cheque to the respondent. The cheque was sent on
April 5, 1990. There is no reason to disbelieve this
fact. In the affidavit on behalf of the Government it
has been stated that the cheque was sent to the
respondent but it was returned. It is not in dispute
that the cheque was drawn, and there is no
reason why it should be disbelieved merely on the
ground that some other letter has not been
produced.
4. The second reason given by the High Court is
equally untenable. Shri Goyal is the concerned
Chief Engineer. He is also required to take a
decision on the compulsory retirement of the
respondent. His participation in the Committee
was inevitable and could not be found fault with.
Secondly, the record reveals that the respondent
got adverse entries right from 1961-62 to 1973-74,
1977-78, 1979-80, 1980-81 and even
subsequently. In view of the poor record of service,
we think that the High Court was not justified in
setting aside the order of compulsory retirement."
8.5. The observation of Hon'ble Supreme Court of India in
Union of India Vrs. Dulal Dutt, (1993) 2 SCC 179 is as
under:
"18. It will be noticed that the Tribunal completely
erred in assuming, in the circumstances of the
case, that there ought to have been a speaking
order for compulsory retirement. This Court, has
been repeatedly emphasising right from the case
of R.L. Butail Vrs. Union of India, (1970) 2 SCC
876 and Union of India Vrs. J.N. Sinha, (1970) 2
SCC 458 that an order of a compulsory
retirement is not an order of punishment. It
is actually a prerogative of the Government
but it should be based on material and has to
be passed on the subjective satisfaction of
the Government. Very often, on enquiry by the
Court the Government may disclose the
material but it is very much different from
the saying that the order should be a
speaking order. No order of compulsory
retirement is required to be a speaking order. From
the very order of the Tribunal it is clear that the
Government had, before it, the report of the
Review Committee yet it thought it fit of
compulsorily retiring the respondent. The order
cannot be called either mala fide or arbitrary in
law."
8.6. The observation of Hon'ble Supreme Court of India in
Union of India Vrs. V.P. Seth, (1994) SCC (L&S) 1052 is
as under:
"3. These principles3 were reiterated with approval in
the subsequent decision. It would, therefore,
seem that an order of compulsory retirement
3 Principles are enunciated in Baikuntha Nath Das Vrs. Chief District
Medical Officer, Baripada, (1992) 2 SCC 299 and Posts and Telegraphs
Board Vrs. C.S.N. Murthy, (1992) 2 SCC 317.
can be made subject to judicial review only
on grounds of mala fides, arbitrariness or
perversity and that the rule of audi alteram
partem has no application since the order of
compulsory retirement in such a situation is
not penal in nature. The position of law having
thus been settled by two decisions of this Court,
we are afraid that the order of the Tribunal cannot
be sustained as the same runs counter to the
principles laid down in the said two decisions."
8.7. The observation of Hon'ble Supreme Court of India in
S. Ramachandra Raju Vrs. State of Orissa, (1994) Supp.
3 SCC 424 = (1994) Supp.2 SCR 828 is as under:
"6. The whole purpose of the rule is to weed out the
worthless without the punitive extremes covered
by Article 311 of the Constitution. After all,
Administration, to be efficient, must not be
manned by drones, do nothings, incompetents and
unworthies. They may not be delinquent who
must be punished but may be a burden on the
Administration if by insensitive, insouciant,
unintelligent or dubious conduct impede the
flow or promote stagnation. In a country where
speed, sensitivity, probity, and non-irritative
public relations and enthusiastic creativity are
urgently needed, paper-logged processes and
callous cadres are the besetting sin of the
Administration. It is in public interest to retire a
never-do-well, but to juggle with confidential
reports when a man‟s career is at stake is a
confidence trick contrary to public interest.
Moreover, confidential reports are often
subjective, impressionistic and must receive
sedulous checking as basis for decision-
making. The appropriate authority, not the court,
makes the decision, but even so, a caveat is
necessary, to avoid misuse.
7. This Court considered the whole service record. In
that case some anterior record in which the
Review Committee found that the performance of
the appellant was below average and that,
therefore, he was compulsorily retired. But the
service of latter years disclosed that there was
considerable improvement in the efficiency of the
appellant. While considering the exercise of the
power in that background this Court held that one
wonders how an officer whose continuous service
for 14 years crossing the efficiency bar and
reaching the maximum salary in the scale and
with no adverse entries for five years immediately
before the compulsory retirement, could be
cashiered on the score that long years ago, his
performance had been poor, although his
superiors had allowed him to cross the efficiency
bar without qualms. A short cut may often be
wrong cut. The order of compulsory
retirement fails because vital material,
relevant to the decision, has been ignored
and absolute material, less relevant to the
decision, has influenced the decision. Any
order which materially suffers from the
blemish of overlooking or ignoring, wilfully
or otherwise, vital facts bearing on the
decision is bad in law. Accordingly the appeal
was allowed and the order of compulsory
retirement was set aside. In C.D. Ailawadi Vrs.
Union of India, (1990) 2 SCC 328 = AIR 1990 SC
1004, this Court reiterated that the order of
compulsory retirement is liable to be upset if
no requisite opinion was found on the basis
of the total evolution of the record or it was
based on collateral grounds or the decision is
arbitrary. On the facts that the Committee
had found in the character rolls of the
appellant that he did not have unblemished
record of service, this Court upheld the order
of compulsory retirement. In Ram Ekbal
Sharma Vrs. State of Bihar, (1990) 3 SCC 504, the
facts were that the appellant had excellent record
of service and was successively promoted to
various high echelons from time to time.
Departmental proceedings were initiated against
him. Midway it was dropped and exercising the
power under Rule 74(b)(ii) of the Bihar Service
Code, he was compulsorily retired from service
which was challenged but when became
unsuccessful in the High Court, on appeal, this
Court held that though the order of compulsory
retirement was couched in an innocuous language
the Court could look into the record by lifting the
veil and consider whether the order was by way
of punishment. On the facts it was found that the
order of compulsory retirement was by way of
casting a stigma on the reputation or career of the
appellant and that, therefore, it was held to be in
contravention of Article 311 of the Constitution.
8. In Baikuntha Nath Das Vrs. Chief District Medical
Officer, (1992) 2 SCC 299, a Bench of three
Judges of this Court was to consider whether
uncommunicated adverse remarks would be
considered to order compulsory retirement. This
Court considering the scope of Fundamental Rule
56(j) on the anvil of administrative law, held that
the order of compulsory retirement has to be
passed on forming the opinion that it is in the
public interest to retire a Government servant
compulsorily. Though the order is passed on
the subjective satisfaction of the Government,
the Government or the Review Committee
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 so considered would
naturally include the entries in the
confidential records/character rolls, both
favourable and adverse. The order of
compulsory retirement is not liable to be quashed
on mere showing that while passing it
uncommunicated adverse remarks were taken into
consideration. Further this does not mean that
judicial scrutiny is excluded altogether. Though
the court would not examine the matter as
an appellate court, they may interfere if they
are satisfied that the order is mala fide or
passed on no evidence or that is arbitrary, in
the sense that no reasonable person would
form the requisite opinion or the given
material, in short, if it is found to be a
perverse order, the remedy under Article 226
is an important safeguard, since the remedy
is an effective check against arbitrary, mala
fide or perverse actions.
9. It is thus settled law that though the order of
compulsory retirement is not a punishment
and the Government employee is entitled to
draw all retiral benefits including pension,
the Government must exercise its power only
in the public interest to effectuate the
efficiency of the service. The dead wood
needs to be removed to augment efficiency.
Integrity in public service needs to be
maintained. The exercise of power of
compulsory retirement must not be a haunt
on public servant but must act as a check
and reasonable measure to ensure efficiency
of service and free from corruption and
incompetence. The officer would live by
reputation built around him. In an
appropriate case, there may not be sufficient
evidence to take punitive disciplinary action
of removal from service. But his conduct and
reputation is such that his continuance in
service would be a menace in public service
and injurious to public interest. The entire
service record or character rolls or confidential
reports maintained would furnish the backdrop
material for consideration by the Government or
the Review Committee or the appropriate
authority. On consideration of the totality of the
facts and circumstances alone, the Government
should form the opinion that the Government
officer needs to be compulsorily retired from
service. Therefore, the entire service record
more particular the latest, would form the
foundation for the opinion and furnish the
base to exercise the power under the relevant
rule to compulsorily retire a Government
officer. When an officer reaching the age of
compulsory retirement, as was pointed out by
this Court, he could neither seek alternative
appointment nor meet the family burdens
with the pension or other benefits he gets
and thereby he would be subjected to great
hardship and family would be greatly
affected. Therefore, before exercising the
power, the competent appropriate authority
must weigh pros and cons and balance the
public interest as against the individual
interest. On total evaluation of the entire record of
service if the Government or the Governmental
authority forms the opinion that in the public
interest the officer needs to be retired
compulsorily, the court may not interfere with the
exercise of such bona fide exercise of power but
the court has power and duty to exercise the
power of judicial review not as a court of appeal
but in its exercise of judicial review to consider
whether the power has been properly exercised or
is arbitrary or vitiated either by mala fide or
actuated by extraneous consideration or arbitrary
in retiring the Government officer compulsorily
from service.
10. Keeping these principles in mind and on
considering the facts extracted hereinbefore we
find that the exercise of power by the Government
falls in the category of arbitrary exercise of power
or failure to take the total record of service into
consideration objectively. It has taken only the
solitary adverse report for the year 1987-88
as a foundation to compulsorily retire the
appellant from service. The Review Committee
as well considered only that report, neither earlier
reports nor subsequent reports were considered. It
is seen that admittedly the appellant was
promoted as a Reader after the adverse report and
the adverse comments were communicated to him
and in a mechanical way they rejected the report
(sic. representation) to expunge the adverse
remarks, even without going into the contention of
the appellant that the then Principal was actuated
with mala fides by submitting wrongly or falsely
in confidential reports which appear to have some
foundation or suspicion for such a contention.
Consistent record earlier and later periods
would establish that the appellant has
meritorious record of service as a teacher
and that his devotion to the service is good
and fair and that he maintains discipline,
good relations with the students and imparts
teaching to the students fairly with good
knowledge as a teacher. Therefore, in that
background the exercise of the power is illegal.
11. The facts are eloquent. From 1973-74 the
appellant started with a commendation of his
performance to be „satisfactory‟ to „fair‟ in the year
1990-91. Would it be comprehensible that in the
year 1987-88 whether he would suddenly drop
down and become an average or below average
teacher? When he was a responsible teacher and
he had cordial relations with the student
community, and was taking pains to impart
lessons to the students, would it be believable that
he avoids to take classes and drops down "if not
watched? When anterior to or subsequent to 1987-
88 he was a man of ability and of integrity, the
same would become below average only for the
academic year 1987-88 without discernible
reasons. It would speak volumes on the objectivity
of assessment by the reporting officer i.e. the
Principal. This conduct is much to be desired. This
case would establish as a stark reality that
writing confidential reports bears onerous
responsibility on the reporting officer to eschew his
subjectivity and personal prejudices or proclivity
or predilections and to make objective assessment.
It is needless to emphasise that the career
prospects of a subordinate officer/employee
largely depends upon the work and character
assessment by the reporting officer. The latter
should adopt fair, objective, dispassionate and
constructive commends/comments in estimating or
assessing the character, ability, integrity and
responsibility displayed by the officer/employee
concerned during the relevant period for the above
objectives if not strictly adhered to in making an
honest assessment, the prospect and career of the
subordinate officer being put to great jeopardy.
The reporting officer is bound to lose his credibility
in the eyes of his subordinates and fail to
command respect and work from them. The
constitutional and statutory safeguards given to
the Government employees largely became
responsible to display callousness and disregard
of the discharge of their duties and make it
impossible to the superior or controlling officers to
extract legitimate work from them. The writing of
the confidentials is contributing to make the
subordinates work at least to some extent.
Therefore, writing the confidential reports
objectively and constructively and communication
thereof at the earliest would pave way for amends
by erring subordinate officer or to improve the
efficiency in service. At the same time, the
subordinate-employee/officer should dedicate
to do hard work and duty; assiduity in the
discharge of the duty, honesty with integrity
in performance thereof which alone would
earn his usefulness in retention of his
service. Both would contribute to improve
excellence in service."
8.8. The observation of Hon'ble Supreme Court of India in
State of Odisha Vrs. Ram Chandra Das, (1996) 5 SCC
331 is as under:
"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
premises 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 of the
benefits to draw higher scale of pay after crossing
the efficiency bar. The adverse remarks made are
after promotion. Even otherwise, the remarks
form part of service record and character roll. 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 it 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 even after adverse entries were
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 state of record as a
reasonable prudent man would the Government or
competent officer reach that decision. We find that self-
same 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 were made only
after promotion and not earlier to promotion.
Compulsory retirement is not a punishment. He is
entitled to all the pensionary benefits."
8.9. The observation of Hon'ble Supreme Court of India in
M.S. Bindra Vrs. Union of India, (1998) 7 SCC 310 is as
under:
"11. Therefore, judicial scrutiny of any order
imposing premature compulsory retirement is
permissible if the order is either arbitrary or
mala fide or if it is based on no evidence. The
observation that principles of natural justice have
no place in the context of compulsory retirement
does not mean that if the version of the delinquent
officer is necessary to reach the correct conclusion,
the same can be obviated on the assumption that
other materials alone need be looked into.
13. While viewing this case from the next angle for
judicial scrutiny, i.e., want of evidence or
material to reach such a conclusion, we may
add that want of any material is almost
equivalent to the next situation that from the
available materials, no reasonable man
would reach such a conclusion. While
evaluating the materials, the authority should not
altogether ignore the reputation in which the
officer was held till recently. The maxim "nemo
firut repente turpissimus" (no one becomes
dishonest all of a sudden) is not unexceptional but
still it is a salutary guideline to judge human
conduct, particularly in the field of administrative
law. The authorities should not keep their eyes
totally closed towards the overall estimation in
which the delinquent officer was held in the recent
past by those who were supervising him earlier.
To dunk an officer into the puddle of "doubtful
integrity, it is not enough that the doubt fringes on
a mere hunch. That doubt should be of such a
nature as would reasonably and consciously be
entertainable by a reasonable man on the given
material. Mere possibility is hardly sufficient
to assume that it would have happened.
There must be preponderance of probability
for the reasonable man to entertain doubt
regarding that possibility. Only then there is
justification to ram an officer with the label
doubtful integrity".
14. Here, out of the three instances on which the
Screening Committee relied to dub the officer as a
case of "doubtful integrity", the first is his action
against M/s. Orkay Silk Mills. The fact is that it
was the appellant who headed the operation. A
task which unearthed such a huge sum of
concealed excise duty would normally evoke
appreciation for his work. But what was noted
against him in that affair is that he wilfully
created lacunae in the confiscation proceedings for
providing an escape route to the defaulter. One is
that the confiscation order contains nearly 100
pages and the period was too short for preparing
such an order. What is the inference to be drawn?
Normally it is an achievement that an order of 100
pages was made during such a short period. So
what is then to be thought of against it? Is it that
he would have taken too much pains to finish his
work or is it that he would have caused it to be
written by somebody else? Is there not a clear
possibility that the officer hearing the adjudication
case for several days would have prepared its
prefatory portion as well as the statement of
summary of evidence during the days when
arguments were proceeding and before conclusion
of the hearing, leaving out the crucial discussion to
be dictated after the conclusion of the hearing?
That is not an objectionable course. If so, the
achievement in preparing an order of confiscation
within such a short span should not have been
frowned at, instead there is scope to pay
admiration for its promptitude.
19. We perused the statement of the Jains. They never
said that the appellant made the above demand to
them at any time. The only material before the
Screening Committee was that the two
accused had stated that Kapoor gave them
such an impression. It must be noted that
nobody had checked up the truth of it with
the person to whom it was attributed. The
most unfortunate feature is that nobody has
checked it up even with Mr. Kapoor who is alleged
to have told like that to the Jain Brothers. If the
integrity of senior officers, who established
unblemished reputation and earned
encomiums from all concerned till then, is
proclaimed as doubtful merely on the
strength of statements of persons prosecuted
by such officers, what is the safety of such
officers, more so when they have to embark
on hazardous operations risking their lives
against big business houses?
21. We have no doubt that there is utter dearth
of evidence for the Screening Committee to
conclude that the appellant had doubtful
integrity. Such a conclusion does not stand
judicial scrutiny even within the limited
permissible scope. We, therefore, allow this
appeal and set aside the order under attack
including the order by which premature
compulsory retirement was imposed on the
appellant. The Department concerned shall now
work out the reliefs to be granted to the appellant
as a sequel to this judgment."
8.10. It has been propounded in State of Gujarat Vrs.
Umedbhai M. Patel, (2001) 3 SCC 314 as under:
"11. The law relating to compulsory retirement has now
crystallised into definite principles, which could be
broadly summarised thus:
(i) Whenever the services of a public servant are 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 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."
8.11. The observation of Hon'ble Supreme Court of India in
State of U.P. Vrs. Vijay Kumar Jain, (2002) 3 SCC 641
is as under:
"10. Before we advert to the question which we are
required to decide, it is necessary to notice the
nature of an order compulsorily retiring a
Government servant under FR 56(c). In Shyamlal
Vrs. State of U.P., AIR 1954 SC 369 = (1955) 1
SCR 26 it was held that an order of compulsory
retirement is neither a punishment nor is any
stigma attached to it and it was held therein as
thus : (SCR pp. 41-42)
„There is no such element of charge or imputation
in the case of compulsory retirement. The two
requirements for compulsory retirement are that
the officer has completed twenty-five years‟
service and that it is in the public interest to
dispense with his further services. It is true that
this power of compulsory retirement may be used
when the authority exercising this power cannot
substantiate the misconduct which may be the
real cause for taking the action but what is
important to note is that the directions in the last
sentence in Note-1 to Article 465-A make it
abundantly clear that an imputation or charge is
not in terms made a condition for the exercise of
the power. In other words, a compulsory
retirement has no stigma or implication of
misbehaviour or incapacity.‟
11. In Union of India Vrs. Col. J.N. Sinha, (1970) 2
SCC 458 = (1971) 1 SCR 791 it was held that an
employee compulsorily retired does not lose any
right acquired by him before retirement and that
the said Rule is not intended for taking any penal
action against the Government servant and that
the order retiring a Government servant
compulsorily can only be challenged on the ground
that either the order is arbitrary or it is not in
public interest. No other ground is available to a
Government servant who is sought to be
compulsorily retired from service under the
relevant rules subject to the conditions provided
therein.
14. In State of Punjab Vrs. Gurdas Singh, (1998) 4
SCC 92 it was held thus: (SCC p. 99, para 11)
„Before the decision to retire a Government servant
prematurely is taken the authorities are required
to consider the whole record of service. Any
adverse entry prior to earning of promotion
or crossing of efficiency bar or picking up
higher rank is not wiped out and can be
taken into consideration while considering
the overall performance of the employee
during whole of his tenure of service whether
it is in public interest to retain him in the
service. The whole record of service of the
employee will include any uncommunicated
adverse entries as well.‟
15. The aforesaid decisions unmistakably lay down
that the entire service record of a Government
servant could be considered by the Government
while exercising the power under FR 56(c) of the
Rules with emphasis on the later entries. FR 56(c)
of the Rules read with Explanation (2), empowers
the State Government with an absolute right to
retire an employee on attaining the age of 50
years. It cannot be disputed that the dead
wood need to be removed to maintain
efficiency in the service. Integrity of a
Government employee is foremost
consideration in public service. If a conduct
of a Government employee becomes
unbecoming to the public interest or
obstructs the efficiency in public services, the
Government has an absolute right to
compulsorily retire such an employee in
public interest. The Government‟s right to
compulsorily retire an employee is a method
to ensure efficiency in public service and
while doing so the Government is entitled
under Fundamental Rule 56 to take into
account the entire service record, character
roll or confidential report with emphasis on
the later entries in the character roll of an
employee. In fact, entire service record, character
roll or confidential report furnishes the materials to
the Screening Committee or the State Government,
as the case may be, to find out whether a
Government servant has outlived his utility in
service. It is on consideration of totality of the
materials with emphasis on the later entries in the
character roll, the Government is expected to form
its opinion whether an employee is to be
compulsorily retired or not.
16. Withholding of integrity of a Government employee
is a serious matter. In the present case, what we
find is that the integrity of the respondent was
withheld by an order dated 13.06.1997 and the
said entry in the character roll of the respondent
was well within ten years of passing of the order
of compulsory retirement. During pendency of the
writ petition in the High Court, the U.P. Services
Tribunal on a claim petition filed by the
respondent, shifted the entry from 1997-98 to
1983-84. Shifting of the said entry to a different
period or entry going beyond ten years of passing
of the order of compulsory retirement does not
mean that vigour and sting of the adverse entry is
lost. Vigour or sting of an adverse entry is not
wiped out, merely it is relatable to 11th or
12th year of passing of the order of
compulsory retirement. The aforesaid adverse
entry which could have been taken into account
while considering the case of the respondent for
his compulsory retirement from service, was duly
considered by the State Government and the said
single adverse entry in itself was sufficient to
compulsorily retire the respondent from service.
We are, therefore, of the view that entire
service record or confidential report with
emphasis on the later entries in the
character roll can be taken into account by
the Government while considering a case for
compulsory retirement of a Government
servant.
17. It was not urged before us that the order
compulsorily retiring the respondent was mala
fide or was not in the public interest, and in the
absence of such a case, we do not find any
infirmity in the order compulsorily retiring the
respondent from service."
8.12. The observation of Hon'ble Supreme Court of India in
Nand Kumar Verma Vrs. State of Jharkhand, (2012) 3
SCC 580 is as under:
"28. *** It is now well settled that the object of
compulsory retirement from service is to weed out
the dead wood in order to maintain a high
standard of efficiency and honesty and to keep
the judicial service unpolluted. Keeping this object
in view, the contention of the appellant has to be
appreciated on the basis of the settled law on the
subject of compulsory retirement.
***
31. We are conscious of the fact that there is very
limited scope of judicial review of an order of
premature retirement from service. As observed by
this Court in Rajiah‟s case4, that,
„21. *** when the High Court takes the view that
an order of compulsory retirement
should be made against a member of the
Judicial Service, the adequacy or
sufficiency of such materials cannot be
questioned, unless the materials are
4 High Court of Madras Vrs. R. Rajiah, (1988) 3 SCC 211.
absolutely irrelevant to the purpose of
compulsory retirement.‟
32. We also add that when an order of
compulsory retirement is challenged in a
court of law, the Court has the right to
examine whether some ground or material
germane to the issue exists or not although,
the Court is not interested in the sufficiency
of the material upon which the order of
compulsory retirement rests.
33. This Court in High Court of Punjab & Haryana
Vrs. G. Ishwar Chand Jain, (1999) 4 SCC 579, has
discussed the purpose, importance and effect of
the remarks made during inspection which
ultimately become the part of the ACR of the
concerned Judicial officer. This Court has
observed thus:
„32. Since late this Court is watching the spectre
of either judicial officers or the High Courts
coming to this Court when there is an order
prematurely retiring a judicial officer. Under
Article 235 of the Constitution the High Court
exercises complete control over subordinate
courts which include District Courts.
Inspection of the subordinate courts is one of
the most important functions which the High
Court performs for control over the
subordinate courts. The object of such
inspection is for the purpose of assessment
of the work performed by the Subordinate
Judge, his capability, integrity and
competency. Since Judges are human beings
and also prone to all the human failings
inspection provides an opportunity for
pointing out mistakes so that they are c
avoided in future and deficiencies, if any, in
the working of the subordinate court,
remedied. Inspection should act as a catalyst
in inspiring Subordinate Judges to give the
best results. They should feel a sense of
achievement. They need encouragement.
They work under great stress and man the
courts while working under great discomfort
and hardship. A satisfactory judicial system
depends largely on the satisfactory
functioning of courts at the grass-roots level.
Remarks recorded by the Inspecting Judge
are normally endorsed by the Full Court and
become part of the annual confidential
reports and are foundations on which the
career of a judicial officer is made or marred.
Inspection of a subordinate court is thus of
vital importance. It has to be both effective
and productive. It can be so only if it is well
regulated and is workman-like. Inspection of
subordinate courts is not a one-day or an
hour or a few minutes‟ affair. It has to go on
all the year round by monitoring the work of
the court by the Inspecting Judge. A casual
inspection can hardly be beneficial to a
judicial system. It does more harm than
good.‟
34. It is also well settled that the formation of
opinion for compulsory retirement is based
on the subjective satisfaction of the authority
concerned but such satisfaction must be
based on a valid material. It is permissible
for the courts to ascertain whether a valid
material exists or otherwise, on which the
subjective satisfaction of the administrative
authority is based. In the present matter, what
we see is that the High Court, while holding that
the track record and service record of the
appellant was unsatisfactory, has selectively
taken into consideration the service record for
certain years only while making extracts of those
contents of the ACRs. There appears to be some
discrepancy. We say so for the reason that the
appellant has produced the copies of the ACRs
which were obtained by him from the High Court
under the Right to Information Act, 2005 and a
comparison of these two would positively indicate
that the High Court has not faithfully extracted the
contents of the ACRs.
***
36. The material on which the decision of the
compulsory retirement was based, as extracted by
the High Court in the impugned judgment, and
material furnished by the appellant would reflect
that totality of relevant materials were not
considered or completely ignored by the High
Court. This leads to only one conclusion that the
subjective satisfaction of the High Court was not
based on the sufficient or relevant material. In this
view of the matter, we cannot say that the service
record of the appellant was unsatisfactory which
would warrant premature retirement from service.
Therefore, there was no justification to retire the
appellant compulsorily from service.
***
39. In Nawal Singh Vrs. State of U.P., (2003) 8 SCC
117, this Court has observed thus:
„12. *** In the present day system, reliance is
required to be placed on the opinion of the
higher officer who had the opportunity to
watch the performance of the officer
concerned from close quarters and formation
of his opinion with regard to the overall
reputation enjoyed by the officer concerned
would be the basis.‟ ***"
8.13. The observation of Hon'ble Supreme Court of India in
Rajesh Gupta Vrs. State of J&K, (2013) 3 SCC 514 is as
under:
"21. The aforesaid principles have been re-examined
and reiterated by this Court in Nand Kumar
Verma, (2012) 3 SCC 580. ***
24. In Jugal Chandra Saikia, (2003) 4 SCC 59 this
Court reiterated the principles in the following
words: (SCC p. 63, para 6)
„6. *** It cannot be disputed that the passing of
an order of compulsory retirement depends
on the subjective satisfaction of the
competent authority, of course on objective
consideration. Unless it is shown that the
order of compulsory retirement was passed
arbitrarily and without application of mind or
that such formation of opinion to retire
compulsorily was based on no evidence or
that the order of compulsory retirement was
totally perverse, the court cannot interfere.‟
Examining the record of the appellant therein and
the material that was placed before the Screening
Committee, the High Court as well as this Court in
Jugal Chandra case, (2003) 4 SCC 59 came to the
conclusion that on an objective consideration of
the material on the record it was not possible to
accept the argument that the Screening Committee
had acted only on the basis of the report of the
Rao Committee. It was found that the
recommendations of the Screening Committee
were based on relevant material.
25. In Allahabad Bank case, (1996) 4 SCC 504 this
Court examined whether the order of compulsory
retirement, passed in that case, cast a stigma on
Appellant-2. The impugned order therein had
recited that there was "want of application to the
bank‟s work and lack of potential" and "he has
also been found not dependable". It was the case
of Appellant-2 that the aforesaid expressions were
stigmatic as they cast aspersions on his conduct,
character and integrity. The High Court rejected
the plea of Appellant-2 on the ground that the
recitals do not cast any stigma but only assess the
work of Appellant-2 for determining the issue of
his compulsory retirement. In these circumstances,
it was observed that the object of compulsory
retirement is to weed out the dead wood in order
to maintain efficiency in the service and also to
dispense with the services of those whose
integrity is doubtful, so as to preserve purity in the
administration. The order of compulsory
retirement was distinguished from the order
of dismissal and removal, as it does not
inflict any punishment on the Government
servant. It only deprives the Government
servant of the opportunity to remain in
service till the age of superannuation.
Therefore, the order of compulsory retirement
differs from an order of dismissal or removal
both in its nature and consequence. However,
in case it is found that the order is stigmatic it
would be treated as an order of punishment,
which cannot be passed without complying with
the provisions of Article 311(2) and the rules of
natural justice. Upon examination of a large
body of case law, it was observed that the
order of compulsory retirement does not cast
a stigma on the Government servant. But if
the order contains a statement casting
aspersion on his conduct or character, then
the court will treat the order as an order of
punishment, attracting the provisions of
Article 311(2) of the Constitution. In the facts
of that case, it was concluded that the two recitals
contained in the order of premature retirement had
been made in relation to the work of Appellant-2
and not for any other purpose. Therefore, the court
declined to interfere with the order of the High
Court.
26. Examining the fact situation in this case on the
basis of the aforesaid principles, it becomes
evident that the recommendation made by the
High-Powered Committee was indubitably
arbitrary.
29. The report also does not indicate that there is any
irregularity in the bank accounts maintained by
the appellant. The affidavit filed on behalf of the
State of Jammu and Kashmir clearly shows that
according to the Vigilance Organisation, three first
information reports bearing Nos. 49 of 1991, 11 of
1995 and 63 of 1994 were registered by the State
Vigilance Organisation against the appellant when
he was posted as Executive Engineer (REW,
Kathua). Upon investigation, all the FIRs were
found to be "not proved". However,
recommendation was made to initiate
departmental action against the officer. In spite of
the aforesaid recommendation, it has not been
disputed before us, that no departmental action
was ever initiated against the appellant. In fact,
after the completion of the investigation into the
FIRs, the appellant was promoted to the post of
Executive Engineer on 15.12.1996. Therefore, it
can be safely concluded that there were no
material before the High-Powered Committee to
conclude that the officer possessed assets beyond
his known source of income.
30. This now takes us to the other material on the
basis of which the recommendation has been
made by the High-Powered Committee. It has been
noticed by us earlier that the appellant was
required, in the performance of his official duties,
to recommend the sanctioning of technical
approval to the construction of works of various
projects. The allegation with regard to issuing
backdated technical sanctions was duly inquired
into. The conclusion ultimately reached by the
inquiry officer noticed in the earlier part of the
order indicates that at best the appellant acted in
a casual and haphazard manner in the
maintenance of records. Such negligence on the
part of the appellant cannot per se lead to the
conclusion that the appellant was acting in such a
manner with an ulterior motive. The conclusions
reached by the High-Powered Committee also do
not co-relate to the assessment of work and
integrity of the appellant in the annual
performance report. As noticed earlier, in all
the annual performance reports, the officer
has been rated "Very Good", "Excellent" and
even "Outstanding".
31. In view of the aforesaid, the conclusion is
inescapable, that the order passed by the
State Government suffers from the vice of
arbitrariness. The High Court erred in arriving at
conclusions which were not borne out by the
record produced before the High Court. In view of
the settled law, it is not possible for us to uphold
the judgments of the Single Judge as also of the
Division Bench."
8.14. In Rajasthan State Road Transport Corporation Vrs.
Babu Lal Jangir, (2013) 10 SCC 551 the observation of
the Hon'ble Supreme Court of India runs as under:
"14. In Brij Mohan case, (1987) 2 SCC 188 there were
no adverse entries in the confidential records of
the appellant for a period of five years prior to the
impugned order of premature retirement. Within
five years there were two adverse entries.
However, these adverse remarks were not
communicated to the employee. The order based
on uncommunicated adverse entries was set aside
on two grounds, namely:
(i) It was not reasonable and just to consider
adverse entries of remote past and to ignore
good entries of recent past. If the entries for
the period of more than 10 years past are
taken into account it would be an act of
digging out the past to get some material to
make an order against the employee.
(ii) Since the adverse entries were not even
communicated, it was unjust and unfair and
contrary to principles of natural justice to
retire prematurely a Government employee
on the basis of adverse entries which are
either not communicated to him or if
communicated, representations made
against those entries are not considered and
disposed of.
16. It clearly follows from the above that insofar as
first ground in Brij Mohan Singh Chopra, (1987) 2
SCC 188, namely, consideration of adverse entries
of remote past was inappropriate to compulsorily
retire an employee, was not touched or discussed.
In fact, on the facts of Baikuntha Nath Das, (1992)
2 SCC 299, this proposition did not arise for
consideration at all. No doubt, in Gurdas Singh
case, (1998) 4 SCC 92 = AIR 1998 SC 1661, it has
been specifically remarked that the judgment in
Brij Mohan Singh Chopra, (1987) 2 SCC 188 has
been overruled in Baikuntha Nath Das, (1992) 2
SCC 299. It would be relevant to point out that
even Gurdas Singh, (1998) 4 SCC 92 = AIR 1998
SC 1661 was a case relating to uncommunicated
adverse entries. Therefore, Brij Mohan Singh
Chopra, (1987) 2 SCC 188 was overruled only on
the second proposition.
18. On that basis following pertinent observations
were made in Badrinath case, (2000) 8 SCC 395:
„53. We are however concerned with the first
point stated in Brij Mohan Singh Chopra
case, (1987) 2 SCC 188 as explained and
accepted in Principle (iv) of para 34 of the
three-Judge judgment in Baikuntha Nath
Das, (1992) 2 SCC 299. We have already
extracted this passage in Principle (iv) of
para 34. It reaffirms that old adverse
remarks are not to be dug out and that
adverse remarks made before an earlier
selection for promotion are to be treated as
having lost their „sting‟. This view of the
three-Judge Bench, in our view, has since
been not departed from. We shall, therefore,
refer to the two later cases which have
referred to this case in Baikuntha Nath Das,
(1992) 2 SCC 299. The second of these two
later cases has also to be explained.
54. In the first of these latter cases, namely,
Union of India Vrs. V.P. Seth, (1994) SCC
(L&S) 1052 the point related both to adverse
remarks of a period before an earlier
promotion but also to uncommunicated
adverse remarks. It was held that the
Tribunal was wrong in holding in favour of
the officer on the ground that
uncommunicated adverse remarks could not
be relied upon for purposes of compulsory
retirement. So far as the remarks prior to an
earlier promotion, this Court did not hold that
they could be given as much weight as those
in later years. The Court, in fact, relied upon
Baikuntha Nath Das case, (1992) 2 SCC 299
decided by a three-Judge Bench which had
Proposition (iv) in para 34 (at pp. 315-16) had
clearly accepted that adverse remarks prior
to an earlier promotion lose their sting.
55. The second case is the one in State of Punjab
Vrs. Gurdas Singh, (1998) 4 SCC 92 = AIR
1998 SC 1661. The facts that there were
adverse remarks from 1978 prior to 1984
when the officer was promoted and there
were also adverse remarks for the period
18.06.1984 to 31.03.1985. The compulsory
retirement order was passed on 03.09.1987.
The said order was quashed by the civil
court on the ground that his record prior to
his promotion i.e. prior to 1984 could not
have been considered and two adverse
entries after 1984 were not communicated
and could not be relied upon. The three-
Judge Bench, while clearly setting out
Proposition (iv) in para 34 of Baikuntha Nath
Das, (1992) 2 SCC 299 which said that
adverse remarks prior to promotion lose their
sting, held that they were following the said
judgment and they allowed the appeal of the
State. Following Baikuntha Nath Das,
(1992) 2 SCC 299, the Bench felt that
uncommunicated adverse remarks could
be relied upon and in that case these
entries related to the period after an
earlier promotion. That ground alone
was sufficient for the case. There is a
further observation that an adverse
entry prior to earning of promotion or
crossing of efficiency bar or picking up
higher rank is not wiped out and can be
taken into consideration while
considering the overall performance of
the employee during the whole tenure of
service.
56. The above sentence in Gurdas Singh, (1998)
4 SCC 92 = AIR 1998 SC 1661 needs to be
explained in the context of the Bench
accepting the three-Judge Bench ruling in
Baikuntha Nath Das, (1992) 2 SCC 299.
Firstly, this last observation in Gurdas Singh
case, (1998) 4 SCC 92 = AIR 1998 SC 1661
does not go against the general principle laid
down in Baikuntha Nath Das, (1992) 2 SCC
299 to the effect that though adverse
remarks prior to an earlier promotion can be
taken into account, they would have lost
their „sting‟. Secondly, there is a special fact
in Gurdas Singh case, (1998) 4 SCC 92 = AIR
1998 SC 1661, namely, that the adverse
remarks prior to the earlier promotion
related to his „dishonesty‟. In a case
relating to compulsory retirement
therefore, the sting in adverse remarks
relating to dishonesty prior to an earlier
promotion cannot be said to be
absolutely wiped out. The fact also
remains that in Gurdas Singh case, (1998) 4
SCC 92 there were other adverse remarks
also even after the earlier promotion,
regarding dishonesty though they were not
communicated. We do not think that Gurdas
Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661
is an authority to say that adverse remarks
before a promotion, however remote, could be
given full weight in all situations irrespective
of whether they related to dishonesty or
otherwise. As pointed in the three-Judge
Bench case in Baikuntha Nath Das, (1998) 4
SCC 92 = AIR 1998 SC 1661, which was
followed in Gurdas Singh, (1998) 4 SCC 92 =
AIR 1998 SC 1661 they can be kept in mind
but not given the normal weight which could
have otherwise been given to them but their
strength is substantially weakened
unless of course they relate to
dishonesty.‟
19. If one were to go by the dicta in Badrinath case,
(2000) 8 SCC 395, the obvious conclusion would
be that even if there are adverse remarks in the
service career of an employee they would lose
their effect, when that employee is given promotion
to the higher post and would not be taken into
account when the case of that employee for
compulsory retirement is taken up for
consideration, except only those adverse entries in
the confidential reports of that employee which
touch upon his integrity. Thus, Badrinath case,
(2000) 8 SCC 395 interprets Principle (iv) in
para 34 of Baikuntha Das, (1992) 2 SCC 299
to mean such adverse remarks for the period
prior to promotion, unless they are related to
dishonesty, would be substantially weakened
after the promotion.
20. This interpretation given in Badrinath case, (2000)
8 SCC 395, which was the judgment rendered by
two-member Bench, has not been accepted by
three-member Bench of this Court, subsequently,
in Pyare Mohan Lal Vrs. State of Jharkhand,
(2010) 10 SCC 693. After discussing various
judgments, including the judgments referred to by
us hitherto, the Court clarified and spelled out the
circumstances in which the earlier adverse
entries/record would be wiped off and the
circumstances in which the said record, even of
remote past would not lose its significance. It is
lucidly conceptualised under the head "Washed-
off theory" as follows: (Pyare Mohan Lal case,
(2010) 10 SCC 693, pp. 702-04, paras 19-22)
Washed-off theory:
19. In State of Punjab Vrs. Dewan Chuni Lal,
(1970) 1 SCC 479 = AIR 1970 SC 2086 a
two-Judge Bench of this Court held that
adverse entries regarding the dishonesty
and inefficiency of the Government employee
in his ACRs have to be ignored if, subsequent
to recording of the same, he had been
allowed to cross the efficiency bar, as it
would mean that while permitting him to
cross the efficiency bar such entries had
been considered and were not found of
serious nature for the purpose of crossing the
efficiency bar.
20. Similarly, a two-Judge Bench of this Court in
Baidyanath Mahapatra Vrs. State of Orissa,
(1989) 4 SCC 664 = AIR 1989 SC 2218 had
taken a similar view on the issue observing
that adverse entries awarded to the
employee in the remote past lost significance
in view of the fact that he had subsequently
been promoted to the higher post, for the
reason that while considering the case for
promotion he had been found to possess
eligibility and suitability and if such entry
did not reflect deficiency in his work and
conduct for the purpose of promotion, it
would be difficult to comprehend how such
an adverse entry could be pressed into
service for retiring him compulsorily. When a
Government servant is promoted to higher
post on the basis of merit and selection,
adverse entries if any contained in his
service record lose their significance and
remain on record as part of past history. This
view has been adopted by this Court in
Baikuntha Nath Das, (1992) 2 SCC 299.
21. However, a three-Judge Bench of this Court
in State of Orissa Vrs. Ram Chandra Das,
(1996) 5 SCC 331 = AIR 1996 SC 2436 had
taken a different view as it had been held
therein that such entries still remain part of
the record for overall consideration to retire a
Government servant compulsorily. The object
always is public interest. Therefore, such
entries do not lose significance, even if
the employee has subsequently been
promoted. The Court held as under: (SCC
pp. 333-34, para 7)
„7. *** Merely because a promotion has
been given even after adverse entries
were 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 state of record as a
reasonable prudent man would the
Government or competent officer reach
that decision. We find that self-same
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.‟
This judgment has been approved and
followed by this Court in State of Gujarat
Vrs. Umedbhai M. Patel, (2001) 3 SCC 314 =
AIR 2001 SC 1109, emphasising that the
entire record‟ of the Government servant is to
be examined.
22. In Vijay Kumar Jain, State of U.P. Vrs. Vijay
Kumar Jain, (2002) 3 SCC 641 this Court
held that the vigour or sting of an entry does
not get wiped out, particularly, while
considering the case of employee for giving
him compulsory retirement, as it requires the
examination of the entire service records,
including character rolls and confidential
reports. „Vigour or sting of an adverse entry
is not wiped out‟, merely it relates to the
remote past. There may be a single adverse
entry of integrity which may be sufficient to
compulsorily retire the Government servant.‟
21. Stating that the judgment of the larger Bench
would be binding, the washed-off theory is
summed up by the Court in the following manner:
(Pyare Mohan Lal case, (2010) 10 SCC 693, pp.
704-05, para 24)
„24. In view of the above, the law can be
summarised to state that in case there is a
conflict between two or more judgments of
this Court, the judgment of the larger Bench
is to be followed. More so, the washed-off
theory does not have universal application. It
may have relevance while considering the
case of Government servant for further
promotion but not in a case where the
employee is being assessed by the reviewing
authority to determine whether he is fit to be
retained in service or requires to be given
compulsory retirement, as the Committee is
to assess his suitability taking into
consideration his entire service record.‟
22. It clearly follows from the above that the
clarification given by a two-Judge Bench judgment
in Badrinath, (2000) 8 SCC 395 is not correct and
the observations of this Court in Gurdas Singh,
(1998) 4 SCC 92 = AIR 1998 SC 1661 to the effect
that the adverse entries prior to the
promotion or crossing of efficiency bar or
picking up higher rank are not wiped off and
can be taken into account while considering
the overall performance of the employee
when it comes to the consideration of case of
that employee for premature retirement.
23. The principle of law which is clarified and stands
crystallised after the judgment in Pyare Mohan Lal
Vrs. State of Jharkhand, (2010) 10 SCC 693 is
that after the promotion of an employee the
adverse entries prior thereto would have no
relevance and can be treated as wiped off when
the case of the Government employee is to be
considered for further promotion. However, this
"washed-off theory" will have no application when
the case of an employee is being assessed to
determine whether he is fit to be retained in
service or requires to be given compulsory
retirement. The rationale given is that since such
an assessment is based on "entire service record",
there is no question of not taking into
consideration the earlier old adverse entries or
record of the old period. We may hasten to add
that while such a record can be taken into
consideration, at the same time, the service record
of the immediate past period will have to be given
due credence and weightage. For example, as
against some very old adverse entries where the
immediate past record shows exemplary
performance, ignoring such a record of recent past
and acting only on the basis of old adverse
entries, to retire a person will be a clear example
of arbitrary exercise of power. However, if old
record pertains to integrity of a person then that
may be sufficient to justify the order of premature
retirement of the Government servant.
***
27. It hardly needs to be emphasised that the
order of compulsory retirement is neither
punitive nor stigmatic. It is based on
subjective satisfaction of the employer and a
very limited scope of judicial review is
available in such cases. Interference is
permissible only on the ground of non-
application of mind, mala fide, perverse, or
arbitrary or if there is non-compliance with
statutory duty by the statutory authority.
Power to retire compulsorily the Government
servant in terms of service rule is absolute,
provided the authority concerned forms a bona
fide opinion that compulsory retirement is in public
interest. (See Posts and Telegraphs Board Vrs.
C.S.N. Murthy, (1992) 2 SCC 317 = AIR 1992 SC
1368)."
8.15. In Punjab State Power Corporation Limited Vrs. Hari
Kishan Verma, (2015) 13 SCC 156, the Hon'ble
Supreme Court, after a discussion of the case law on
the subject, observed as follows:
"14. In State of Orissa Vrs. Ram Chandra Das, (1996) 5
SCC 331, a three-Judge Bench has emphatically
held that object behind compulsory retirement is
public interest and, therefore, even if an
employee has been subsequently promoted,
the previous entries do not melt into
insignificance.
„7. *** Merely because a promotion has been
given even after adverse entries were 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 state of record as a
reasonable prudent man would the
Government or competent officer reach
that decision. We find that self-same
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.‟
15. The aforesaid dictum has been approved and
followed in State of Gujarat Vrs. Umedbhai M.
Patel, (2001) 3 SCC 214, wherein emphasis has
been laid on the factum that the entire service
record of the Government servant is to be
examined. Same principle has also been followed
in another three-Judge Bench decision in Pyare
Mohan Lal Vrs. State of Jharkhand, (2010) 10
SCC 693. Slightly recently, a Division Bench in
Rajasthan State Road Transport Corporation Vrs.
Babu Lal Jangir, (2013) 10 SCC 551, after
discussing number of authorities, has held thus:
„22. It clearly follows from the above that the
clarification given by a two-Judge Bench
judgment in Badrinath Vrs. State of Tamil
Nadu is not correct and the observations of
this Court in State of Punjab Vrs. Gurdas
Singh to the effect that the adverse
entries prior to the promotion or
crossing of efficiency bar or picking up
higher rank are not wiped off and can
be taken into account while considering
the overall performance of the employee
when it comes to the consideration of
case of that employee for premature
retirement.‟ ***"
8.16. The observation of the Hon'ble Supreme Court of India
in Ram Murti Yadav Vrs. State of U.P., (2020) 1 SCC
801 is as under:
"6. The service records of the appellant have been
examined by the Screening Committee, the Full
Court as also by the Division Bench of the High
Court. The scope for judicial review of an order of
compulsory retirement based on the subjective
satisfaction of the employer is extremely narrow
and restricted. Only if it is found to be based
on arbitrary or capricious grounds, vitiated
by mala fides, overlooks relevant materials,
could there be limited scope for interference.
The court, in judicial review, cannot sit in
judgment over the same as an appellate
authority. Principles of natural justice have
no application in a case of compulsory
retirement.
7. The performance chart, as furnished by the
appellant, demonstrates that his assessment from
1996-1997 till 2014-2015 rates him as a "fair" or
"good officer" only, except for one entry of "very
good" in the year 2011-2012. The submission
that his integrity was certified on each
occasion leaves us unimpressed. There can
hardly be any direct evidence with regard to
integrity as far as a judicial officer is
concerned. It is more a matter of inference
and perceptions based on the conduct of the
officer. The inadequacy of the present system of
writing ACRs of judicial officers has deficiencies in
several ways, was noticed in High Court of Patna
Vrs. Pandey Gajendra Prasad, (2012) 6 SCC 357.
8. The complaint against the appellant with regard to
the acquittal granted by him was first considered
by the Administrative Judge, who was satisfied
that it is a matter for further enquiry. The
comments of the appellant were called for. A
vigilance enquiry was recommended by the
Administrative Judge, who obviously was not
satisfied with the explanation furnished. The
officer holding the vigilance enquiry was also a
judicial officer who opined that the act of acquittal
by the appellant was not above board. The
comments of the appellant were again called for.
The Screening Committee consisting of the three
Hon‟ble Judges, on an overall assessment of the
appellant‟s service record, recommended his
compulsory retirement. The Full Court scrutinised
the service records of the appellant again while
considering the recommendation of the Screening
Committee and arrived at the conclusion that it
was in public interest to compulsory retire the
appellant. It is undisputed that the punishment of
censure meted out to the appellant was never
assailed by him.
***
14. A person entering the judicial service no doubt has
career aspirations including promotions. An order
of compulsory retirement undoubtedly affects the
career aspirations. Having said so, we must also
sound a caution that judicial service is not like any
other service. A person discharging judicial duties
acts on behalf of the State in discharge of its
sovereign functions. Dispensation of justice is not
only an onerous duty but has been considered as
akin to discharge of a pious duty, and therefore, is
a very serious matter. The standards of probity,
conduct, integrity that may be relevant for
discharge of duties by a careerist in another job
cannot be the same for a judicial officer. A Judge
holds the office of a public trust. Impeccable
integrity, unimpeachable independence with moral
values embodied to the core are absolute
imperatives which brooks no compromise. A Judge
is the pillar of the entire justice system and the
public has a right to demand virtually
irreproachable conduct from anyone performing a
judicial function. Judges must strive for the
highest standards of integrity in both their
professional and personal lives.
15. It has to be kept in mind that a person seeking
justice, has the first exposure to the justice
delivery system at the level of subordinate
judiciary, and thus a sense of injustice can have
serious repercussions not only on that individual
but can have its fall out in the society as well. It is,
therefore, absolutely necessary that the ordinary
litigant must have complete faith at this level and
no impression can be afforded to be given to a
litigant which may even create a perception to the
contrary as the consequences can be very
damaging. The standard or yardstick for judging
the conduct of the judicial officer, therefore, has
necessarily to be strict. Having said so, we must
also observe that it is not every inadvertent flaw
or error that will make a judicial officer culpable.
The State Judicial Academies undoubtedly has a
stellar role to perform in this regard. A bona fide
error may need correction and counselling.
But a conduct which creates a perception
beyond the ordinary cannot be countenanced.
For a trained legal mind, a judicial order speaks
for itself."
8.17. The Hon'ble Supreme Court of India in Central
Industrial Security Force Vrs. Om Prakash, (2022) 2
SCR 203 made the following observation:
"13. There are numerous other judgments upholding
the orders of premature retirement of judicial
officers inter alia on the ground that the judicial
service is not akin to other services. A person
discharging judicial duties acts on behalf of the
State in discharge of its sovereign functions.
Dispensation of justice is not only an onerous duty
but has been considered as discharge of a pious
duty, therefore, it is a very serious matter. ***
14. Thus, we find that the High Court has not only
misread the judgment of this Court in Baikuntha
Nath Das Vrs. Chief District Medical Officer,
Baripada, (1992) 2 SCC 299 but wrongly applied
the principles laid down therein. The adverse
remarks can be taken into consideration as
mentioned in the number of judgments mentioned
above. There is also a factual error in the order of
the High Court that there are no adverse remarks
and that the ACRs for the year 1990 till the year
2009 were either good or very good. In fact, the
summary of ACRs as reproduced by the High
Court itself shows average, satisfactory and in
fact below average reports as well.
15. The entire service record is to be taken into
consideration which would include the ACRs
of the period prior to the promotion. The
order of premature retirement is required to
be passed on the basis of entire service
records, though the recent reports would
carry their own weight.
16. In view of the said fact, we find that the order of
the High Court setting aside the order of
premature retirement is clearly unsustainable and
is set aside. The appeal is allowed. The writ
petition thus stands dismissed."
8.18. The observation of Delhi High Court in Ashok Kumar
Agrawal Vrs. Union of India, 284 (2021) DLT 5 =
MANU/DE/2413/2021 is as under:
"25. Much has been argued out by learned Senior
Counsel appearing on behalf of the petitioner that
there are several litigations initiated by the
Petitioner for suspension, quashing of the charge
sheets in departmental proceedings, for quashing
of the sanction for prosecution, for getting
promotions etc. and the petitioner has succeeded
in all these litigations. This constitutes mala fide in
law on the part of the respondents.
***
28. We are not in agreement with this contention
canvassed by the learned Senior Counsel for the
reason that compulsory retirement is
absolutely an independent decision arrived
at by the Review Committee keeping in mind
the entire service record of the petitioner and
usefulness of the petitioner into the services
of the respondents. In the 34 years span of his
career, for 20 years, petitioner has been busy in
litigation with the respondents. The conduct of the
petitioner has shaken the confidence of the
respondents to post him on public posts which
involves public dealing.
***
32. Even if there are decisions in the matter of
suspension, departmental inquiries and any
challenge of grant of sanction for
prosecution in favour of the Petitioner, that
does not mean that the Petitioner cannot be
compulsorily retired by the Respondents. The
observations made in the orders while deciding
the matter initiated by the petitioner is one thing
whereas, the order of compulsory retirement
which is passed on the basis of entire service
record of the petitioner and the decision taken by
Review Committee, is altogether another thing. If
any employee of the Union of India has succeeded
in litigation(s) that does not mean that looking to
the overall service record of the petitioner, after
certain age as per rules, he cannot be retired by
the Union of India. It ought to be kept in mind that
compulsory retirement is a subjective satisfaction
which has been formed on the basis of the entire
service record. It is not a punishment. Compulsory
retirement may have some adverse effect upon the
employee but if the Review Committee is of the
opinion that in the interest of public his services
should be brought to an end by compulsory
retirement after prescribed age on the basis of the
entire record of service, such an employee has no
right to continue into the services after a
prescribed age, as per rules.
***
39. In view of the aforesaid even if there is
quashing of charges in a departmental
proceedings, still the respondents have all
power, jurisdiction and authority under Rule
56(j) of Fundamental Rules for passing an
order of compulsory retirement of the
petitioner.
40. Compulsory retirement has various facets.
Compulsory retirement can be passed looking to
the overall service record of the Government
employee. Compulsory retirement order can
also be passed in public interest with a view
to improve efficiency of the administration or
to weed out people of doubtful integrity or
corrupt employee but sufficient evidence was
not available to take disciplinary action in
accordance with the rules, so as to inculcate
a sense of discipline in the services. Thus,
even if for this petitioner, the departmental
charges have been quashed and set aside and
the sanction granted for prosecution in two
criminal cases have been quashed and set
aside, still the respondents can pass an order
for compulsory retirement of the petitioner.
***
44. Thus, even if this Petitioner has succeeded in
few litigations, a subjective satisfaction can
always be arrived at by the Respondents
looking to the entire service record and
performance of the Petitioner to make him
compulsory retire.
45. Much has been argued out about the „honourable
acquittal‟ and „acquittal on technical ground but
we are not going into much detail about this
aspect of the matter because the difference
between the two is remarkable and noticeable and
has been clarified in several decisions referred by
the Hon‟ble Supreme Court, but, as the Special
Leave Petitions are pending, we are not going into
the detail analysis of „honourable acquittal‟ and
„acquittal on technical ground‟ in this case.
Suffice it would be to say that even if there is
acquittal from the charges levelled against
the employee for one or the other reasons, an
overall decision can always be taken by the
Review Committee looking to the entire
service record and the performance of the
Central Government employee for taking a
decision of compulsory retirement. There is
no ban or bar for the respondents that no
compulsory retirement order can be passed
whenever there is quashing of the charges in
any litigation between an employee and the
Central Government. What is to be seen is
overall assessment of the performance of an
employee and his usefulness into the services
and not one or two matters and decisions in
those matters. This opinion is a subjective
satisfaction of the Review Committee. In the
present case, there is no procedural error
committed by the Review Committee while taking
the decision under Rule 56() of Fundamental
Rules. Even if there are observations about malice
in law while deciding few matters between the
Petitioner and Union of India, that does not mean
that there is presence of malice when Review
Committee has taken a decision under Rule 56(j)
of Fundamental Rules retiring compulsorily this
Petitioner dated 10.06.2019. There is no personal
malice alleged by the Petitioner upon the members
of the Review Committee.
46. There is no arbitrariness on the part of the
Review Committee while taking the decision
of the compulsory retirement of the
Petitioner, the decision is based upon the
entire service record, performance of the
Petitioner and the usefulness of the
Petitioner into the service of the Union of
India and looking to the totality of the facts
and circumstances of the petitioner,
subjective satisfaction has been arrived by
the Review Committee. We are not sitting in
appeal against the subjective satisfaction of the
Review Committee.
47. There is no perversity in the order of the Review
Committee. Review Committee has seen the entire
record of service of the petitioner including the
decision rendered in various litigations initiated by
the petitioner and Review Committee is of the
opinion that the continuation of the services of the
petitioner is no longer required and he should be
made compulsorily retired.
48. Thus, there is no mala fide, no arbitrariness and
no perversity on the part of the Review Committee
while arriving at a subjective satisfaction of
compulsory retirement of the petitioner. It ought to
be kept in mind that compulsory retirement is not
a punishment. Such compulsory retired
Government servant does not loose any benefits
earned by him till the date of his retirement.
***
56. There are serious allegations against the petitioner
of corruption and of disproportionate assets
including CBI cases for which sanction was given
for prosecution and the SLPs are pending before
the Hon‟ble Supreme Court. Even if the employee
has succeeded in one or two cases or in few cases
against the Central Government, that does not
make him „compulsory retirement proof‟ employee.
Such type of employee can also be made
compulsory retired if looking to the entire service
record and overall performance of the employee,
usefulness of the employee into further service is
not in public interest. There can be water proof
tents or heat proof houses but there cannot be
„compulsory retirement proof employee‟ even if, he
has succeeded in few cases against the Central
Government."
8.19. In Shiv Dayal Gupta Vrs. State of Rajasthan, (2005)
Supp.5 SCR 732 it has been held,
"*** The departmental enquiry under Rule 16 of the
Rajasthan Civil Services (Classification, Control and
Appeal) Rules, 1958 where finding against the
appellant of being negligent and grossly careless in
discharging his judicial duties, have been recorded,
which ended in minor penalty of censure imposed on
him and he was further warned to remain careful and
cautious while discharging his judicial functions.
On the basis of overall perusal of the ACR and overall
assessment of service record of the appellant, the
Review Committee consisting of four Senior Judges
found that continuance of officer would be liability to
the Department and adverse to the public interest and
recommended that he should be compulsorily retired. It
is noticed that the recommendations of the Review
Committee was accepted by the Full Court in a meeting
held on 8th November, 2000. It is really a case of
chopping of the dead wood.
That apart, either before the High Court or before
this Court, the appellant never raised and
allegation of mala fide nor the said order has
been passed without application of mind. In fact,
considering the aforesaid facts and circumstances
the appointing authority has come to the
conclusion that the appellant‟s continuance in the
service will be a liability to the public interest and
passed the order after subjective satisfaction of
the matter on the basis of the record placed before
the authority.
Learned senior counsel cited the decisions rendered in:
1. (1992) 2 SCC 299 (Baikuntha Nath Das Vrs. Chief
District Medical Officer, Braipada)
2. (2001) 3 SCC 341 (State of Gujarat Vrs.
Umedhbhai M. Patel)
3. (2002) 3 SCC 641 (State of U.P. Vrs. Vinay Kumar
Jain) and
4. (2001) 3 SCC 389 (State of U.P. Vrs. Lalsa Ram).
The ratio of the decision cited quoted by the
learned senior counsel for the appellant, are not
applicable in the facts of this case."
Conspectus of aforesaid decisions:
9. Conspectus of decisions referred to above
illuminatingly cull out the principles as follows:
9.1. Perspective of "premature retirement"" alternatively,
"compulsory retirement":
i. Every termination of service is not punishment,
but only those which are brought about by
removal or dismissal for misconduct after
enquiry. 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. Whenever the services of a public
servant are 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. An order of
compulsory retirement is neither a punishment,
nor does it imply stigma or is it indicative of any
suggestion of misbehaviour.
iii. The order of compulsory retirement shall not be
passed as a short-cut to avoid departmental
enquiry when such course is more desirable. The
rule is not used as a ruse for victimisation by
getting rid of honest and unobliging officers in
order to make way for incompetent favourites of
the Government which is bound to lead to
serious demoralisation in the service and defeat
the laudable object which the rule seeks to
subserve.
iv. An order of compulsory retirement on one hand
causes no prejudice to the Government servant
who is made to lead a restful life enjoying full
pensionary and other benefits and on the other
gives a new animation and equanimity to the
services.
v. The entire service record, more particularly the
latest, would form the foundation for the opinion
and furnish the base to exercise the power under
the relevant rule to compulsorily retire a
Government employee. Such an employee
reaching the age of compulsory retirement could
neither seek alternative appointment nor meet
the family burden with the pension or other
benefits he gets. He would be subjected to great
hardship and family would be greatly affected.
Therefore, before exercising the power, the
competent appropriate authority must weigh pros
and cons and balance the public interest as
against the individual interest.
vi. Compulsory retirement order can also be passed
in public interest with a view to improve
efficiency of the administration or to weed out
people of doubtful integrity or corrupt employee
but sufficient evidence was not available to take
disciplinary action in accordance with the rules,
so as to inculcate a sense of discipline in the
services. Thus, even if the departmental charges
have been quashed and set aside and the
sanction granted for prosecution in criminal case
has been quashed and set aside, still the
Government can pass an order for premature/
compulsory retirement.
9.2. Right of the Government servant:
The principle governing the order of preventive
detention evolved by the Supreme Court having regard
to the constitutional right of a person appertaining to
effective representation against such order is not
applicable in the case of an order for compulsory
retirement which casts no stigma on a Government
servant and cannot be equated with an order affecting
his right by way of disciplinary proceedings. An order
of compulsory retirement, simpliciter, under Rules
does not affect any right of the Government servant.5
9.3. Elements to be taken into consideration:
i. Mere possibility is hardly sufficient to assume
that it would have happened. There must be
preponderance of probability for the reasonable
man to entertain doubt regarding that possibility.
Only then there is justification to ram an officer
with the label ―doubtful integrity‖.
5 State of Uttar Pradesh Vrs. Chandra Mohan Nigam, AIR 1977 SC 2411 =
(1978) 1 SCR 521.
ii. Adverse entries:
a. Any adverse entries made in the confidential
record shall be taken note of and be given
due weightage in passing such order.
b. Even uncommunicated entries in the
confidential record can also be taken into
consideration.
c. If the officer was given a promotion despite
adverse entries made in the confidential
record, that is a fact in favour of the officer.
d. Vigour or sting of an adverse entry is not
wiped out, merely it relates to the remote
past. There may be a single adverse entry of
integrity which may be sufficient to
compulsorily retire the Government servant.
iii. Other relevant factors:
a. The order of premature retirement fails if
vital material, relevant to the decision, has
been ignored and obsolete material, less
relevant to the decision, has influenced the
decision. Any order which materially suffers
from the blemish of overlooking or ignoring,
wilfully or otherwise, vital facts bearing on
the decision is bad in law.
b. Though the order of premature/compulsory
retirement is not a punishment and the
Government employee is entitled to draw all
retirement benefits including pension, the
Government must exercise its power only in
the public interest to effectuate the
efficiency of the service.
c. The deadwood needs to be removed to
augment efficiency. Integrity in public
service needs to be maintained. The exercise
of power of compulsory retirement must not
be a haunt on public servant but must act
as a check and reasonable measure to
ensure efficiency of service and free from
corruption and incompetence.
d. The officer would live by reputation built
around him. In an appropriate case, there
may not be sufficient evidence to take
punitive disciplinary action of removal from
service. But his conduct and reputation is
such that his continuance in service would
be a menace in public service and injurious
to public interest.
e. If a conduct of a Government employee
becomes unbecoming to the public interest
or obstructs the efficiency in public services,
the Government has absolute right to
compulsorily retire such an employee in
public interest. The Government's right to
compulsorily retire an employee is a method
to ensure efficiency in public service.
9.4. Competent authority:
i. 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
delinquency and whether it is of such a degree as
to require the compulsory retirement of the
employee are factors 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.
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.
9.5. Records:
i. Though the order is passed on the subjective
satisfaction of the Government, the Government
or the Review Committee 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 so considered would
naturally include the entries in the confidential
records/character rolls, both favourable and
adverse.
ii. The entire service record is to be taken into
consideration which would include the PARs of
the period even prior to the promotion. The
―washed off‖ theory is not attracted. The order of
premature retirement is required to be passed on
the basis of entire service records, though the
recent reports would carry their own weight.
therefore, even if an employee has been
subsequently promoted, the previous entries do
not melt into insignificance.
iii. The whole record of service of the employee will
include any uncommunicated adverse entries as
well.
iv. Any adverse entry prior to earning of promotion
or crossing of efficiency bar or picking up higher
rank is not wiped out and can be taken into
consideration while considering the overall
performance of the employee during whole of his
tenure of service whether it is in public interest
to retain him in the service.
9.6. Applicability of principles of natural justice:
i. Principles of natural justice are not attracted in a
case of premature/compulsory retirement.
ii. Since the nature of the function of the authority
taking decision for premature retirement is not
quasi judicial in nature. 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.
iii. An order of compulsory retirement is not an
order of punishment. It is actually a prerogative
of the Government but it should be based on
material and has to be passed on the subjective
satisfaction of the Government. Very often, on
enquiry by the Court the Government may
disclose the material but it is very much different
from saying that the order should be a speaking
order. No order of compulsory retirement is
required to be a speaking order.
9.7. Sufficiency of material:
i. The adequacy or sufficiency of materials based
on which the order for premature/compulsory
retirement is passed cannot be questioned,
unless the materials are absolutely irrelevant to
the purpose of compulsory retirement.
ii. The Court is required to examine whether some
ground or material germane to the issue exists,
although the Court is not interested in the
sufficiency of the material upon which the order
of compulsory retirement rests.
9.8. Scope of judicial review:
i. The remedy under Article 226 is an important
safeguard, since the remedy is an effective check
against arbitrary, mala fide or perverse actions of
the authorities.
ii. The order of premature retirement is based on
subjective satisfaction of the employer and a very
limited scope of judicial review is available in
such cases.
iii. The High Court would not examine the matter as
an Appellate Court; but interference in the order
of premature retirement is permissible, if the
Court is satisfied that the order is passed:
a. arbitrarily; or
b. capriciously, or in ignorance of relevant
materials, or based on no evidence or
perverse; or
c. without application of mind; or
d. if there is non-compliance with statutory
duty by the statutory authority; or
e. smacks mala fide on the part of the
authority concerned.
iv. In other words, 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.
v. The order of compulsory retirement does not cast
a stigma on the Government servant;
nonetheless, if the order contains a statement
casting aspersion on his conduct or character,
then the court will treat the order as an order of
punishment, attracting the provisions of Article
311(2) of the Constitution.
vi. Unless it is shown that the order of compulsory
retirement was passed arbitrarily and without
application of mind or that such formation of
opinion to retire compulsorily was based on no
evidence or that the order of compulsory
retirement was totally perverse, the court cannot
interfere.
Scope of judicial review:
10. In Syed T.A. Naqshbandi Vrs. State of J&K, (2003) 9
SCC 592, it was held that while exercising powers of
judicial review the Courts should not substitute
themselves for the Committee. In the said Judgment, it
has been observed as follows:
"10. Neither the High Court nor this Court, in exercise
of its powers of judicial review, could or would at
any rate substitute themselves in the place of the
Committee/Full Court of the High Court concerned,
to make an independent reassessment of the
same, as if sitting on an appeal. On a careful
consideration of the entire materials brought to our
notice by learned counsel on either side, we are
satisfied that the evaluation made by the
Committee/Full Court forming their unanimous
opinion is neither so arbitrary or capricious nor
can be said to be so irrational as to shock the
conscience of the Court to warrant or justify any
interference. In cases of such assessment,
evaluation and formulation of opinions, a vast
range of multiple factors play a vital and
important role and no one factor should be
allowed to be overblown out of proportion either to
decry or deify an issue to be resolved or claims
sought to be considered or asserted. In the very
nature of things it would be difficult, nearing
almost an impossibility to subject such exercise
undertaken by the Full Court, to judicial review
except in an extraordinary case when the Court is
convinced that some monstrous thing which ought
not to have taken place has really happened and
not merely because there could be another
possible view or someone has some grievance
about the exercise undertaken by the
Committee/Full Court."
10.1. In the case of State of Uttar Pradesh Vrs. Chandra
Mohan Nigam, AIR 1977 SC 2411 = (1978) 1 SCR 521 it
has been laid down that,
"Under Rule 16(2)6, a Government servant has a right to
retire prematurely by giving three months‟ previous
notice to the Government. Similarly under Rule 16(3),
after a Government servant serves a period of 30
years or attains the age of 50 years, he cannot
insist on a right to be retained in the service. The
Government may also exercise a corresponding right
under Rule 16(3) to prematurely retire him at the age of
50 or 55 after giving three months‟ notice. This
termination of service by way of premature retirement
6 The All India Services (Death-cum-Retirement Benefits) Rules, 1958.
cannot be equated with a penal order of removal or
dismissal. Even so, an order of compulsory retirement
may be challenged in a court if it is arbitrary or is
actuated by mala tides."
Analysis and discussion:
11. Rule 71 of the OSC carves out exception to the normal
process of retirement on attaining age of
superannuation, that Appropriate Authority may
require any officer to retire in public interest any time
after he has completed thirty years' of qualifying
service or attained the age of fifty years. For this
purpose the Appropriate Authority is obligated to give
a notice in writing to the Government servant at least
three months before the date on which he is required
to retire or by giving three months' pay and allowances
in lieu of such notice.
11.1. Rule 13 of the OCS (CCA) Rules enumerates different
types of penalties to be imposed on good and sufficient
reasons assigned. While items (i) to (v) ibid. are minor
penalties, the rest of the items (vi) to (ix) are identified
as major penalties. Item (vii) thereof, i.e., compulsory
retirement is, therefore, treated to be major penalty.
Nonetheless, in Explanation appended to Rule 13
makes it explicit that compulsory retirement of a
Government servant in accordance with the provision
relating to his superannuation or retirement shall not
amount to penalty within the meaning of said rule.
11.2. Therefore, it can safely said that the order of
retirement passed by the Government in exercise of
power under clause (a) of Rule 71 of the OSC would
come within the connotation of ―premature
retirement‖, even though it may be loosely worded as
―compulsory retirement‖. A reference to Bishwanath
Prasad Singh Vrs. State of Bihar, (2000) Supp.5 SCR
718, would suffice to comprehend the concept of
compulsory retirement and premature retirement. In
the said case it has been observed as follows:
"The use of the words „compulsory retirement‟ for the
judicial officers allowed to superannuate at the age of
58 years and the expressions such as „compulsory
retirement on attaining the age of 58 years according to
the procedure for compulsory retirement under the
rules‟ have emboldened the petitioner to raise the plea
that subsequent to the judgment of this court in 1993
case, the retirement of a judicial officer at the age of 58
years is not retirement in ordinary course but
compulsory retirement and, therefore, the procedure for
compulsory retirement has to be followed. In our opinion
such a submission cannot be entertained on an overall
reading of the judgment of this court in 1993 case.
Compulsory retirement in service jurisprudence
has two meanings. Under the various disciplinary
rules, compulsory retirement is one of the penalties
inflicted on a delinquent Government servant
consequent upon a finding of guilt being recorded in
disciplinary proceedings. Such penalty involves stigma
and cannot be inflicted except by following procedure
prescribed by the relevant rules or consistently with the
principles of natural justice if the field for inflicting such
penalty be not occupied by any rules. Such compulsory
retirement in the case of a Government servant must
also withstand the scrutiny of Article 311 of the
Constitution. Then there are service rules, such as Rule
56(j) of Fundamental Rules, which confer on the
Government or the appropriate authority, an absolute
(but not arbitrary) right to retire a Government servant
on his attaining a particular age or on his having
completed a certain number of years of service on
formation of an opinion that in public interest it is
necessary to compulsorily retire a Government servant.
In that case, it is neither a punishment nor a penalty
with loss of retiral benefits. ***
More appropriately it is like premature
retirement. It does not cast any stigma. The
Government servant shall be entitled to the pension
actually earned and other retiral benefits. So long as
the opinion forming basis of the order for compulsory
retirement in public interest is formed bona fide, the
opinion cannot be ordinarily interfered with by a
judicial forum. Such an order may be subjected to
judicial review on very limited grounds such as the
order being mala fide, based on no material or on
collateral grounds or having been passed by an
authority not competent to do so. The object of such
compulsory retirement is not to punish or penalise
the Government servant but to weed out the
worthless who have lost their utility for the
administration by their insensitive, unintelligent
or dubious conduct impeding the flow of
administration or promoting stagnation. The
country needs speed, sensitivity, probity, non-irritative
public relation and enthusiastic creativity which can be
achieved by eliminating the dead wood, the paper-
logged and callous."
11.3. The provisions juxtaposed with the conspectus of
decisions referred to above would create no ambiguity
that action taken under Rule 71 of the OSC is not
pernicious in view of the fact that the order of
premature retirement does not pose as stigma nor is it
construed as a penalty within the ken of nature/
categories of penalties enumerated under Rule 13 of
the OCS (CCA) Rules. An order of premature/
compulsory retirement under Rule 71 of the OSC
causes no prejudice to the Government servant as he
is made to lead a restful life enjoying full pensionary
and other benefits. Recourse to Rule 71 of the OSC by
the Government any time after the Government
servant completes thirty years of qualifying service or
attains the age of fifty years.
11.4. Careful scrutiny of the first proviso to clause (a) of
Rule 71 of OSC read with Guidelines dated 24.09.2019
unambiguously points that the scope for consideration
of premature retirement is available for the
appropriate authority on the Government servant;
[either completing 30 years' of qualifying service;
OR
ii. Attaining the age of 50 years]
AND
[Attaining the age of 55 years of age].
11.5. In Central Council for Research in Ayurvedic Sciences
Vrs. Bikartan Das, (2023) 11 SCR 731 interpreting the
use of the words ―or‖ and ―and‖, it has been held,
"32. It is a well-established principle of statutory
interpretation that the word "or" is normally
disjunctive and the word "and" is normally
conjunctive. Both of them can be read as vice-
versa, but that interpretation is adopted only
where the intention of the legislature is manifest.
33. Justice G.P. Singh in the Principles of Statutory
Interpretation (Thirteenth Edition 2012) page 485
has stated as follows:
„The word „or‟ is normally disjunctive and „and‟ is
normally conjunctive but at time they are read as
vice versa to give effect to the manifest intention of
the Legislature as disclosed from the context. As
stated by Scrutton, L.J.: „You do sometimes read
"or" as „and‟ and in a statute. But you do not do it
unless you are obliged because „or‟ does not
7 Proviso to clause (a) of Rule 71 of the Odisha Service Code.
8 Paragraph 3 of the Guidelines for premature retirement of Government
servants to weed out officers and employees of doubtful integrity or
inefficiency from public service to ensure efficiency in administration vide
File No.27037-GAD-SC-GCS-0089-2016/Gen., dated 24.09.2019
generally mean „and‟ and „and‟ does not generally
mean „or‟. And as pointed out by Lord Halsbury
the reading of „or‟ as „and‟ is not to be resorted to,
„unless some other part of the same statute or the
clear intention of it requires that to be done‟.
Where provision is clear and unambiguous the
word „or‟ cannot be read as „and‟ by applying the
principle of reading down. But if the literal reading
of the words produces an unintelligible or absurd,
result „and‟ may be read for „or‟ and „or‟ for „and‟
even though the result of so modifying the words
is less favourable to the subject provided that the
intention of the Legislature is otherwise quite
clear. Conversely if reading of „and‟ and „or‟
produces grammatical distortion and makes no
sense of the portion following „and‟, „or‟ cannot be
read in place of „and‟. The alternatives joined by
„or‟ need not always be mutually exclusive.‟
***
36. We may at this stage, refer to the following
decision in Tamil Nadu Education Department
Ministerial and General Subordinate Services
Association and Others Vrs. State of Tamil Nadu
and Others reported in (1980) 3 SCC 97:
„7. In Service Jurisprudence integration is a
complicated administrative problem
where, in doing broad justice to many,
some bruise to a few cannot be ruled
out. Some play in the joints, even some
wobbling, must be left to Government without
fussy forensic monitoring, since the
administration has been entrusted by the
Constitution to the executive, not to the court.
All life, including administrative life, involves
experiment, trial and error, but within the
leading strings of fundamental rights, and,
absent unconstitutional „excesses‟, judicial
correction is not right.‟***"
11.6. Applying the ratio of aforesaid interpretation as made
by the Hon'ble Supreme Court of India, this Court
finds that the appropriate authority/Review
Committee/Government can take a decision to invoke
Rule 71(a) to get the Government employee retired
prematurely if he completes 30 years of service or
attains the age of 50 years or 55 years of age.
11.7. The Hon'ble Supreme Court of India had had the
occasion to interpret the word ―attain‖ in Prabhu Dayal
Sesma Vrs. State of Rajasthan, (1986) 4 SCC 59,
wherein it has been elaborately discussed as follows:
"8. Rule 11-B of the Rules provides:
„11-B. Age.--
Notwithstanding anything contained
regarding age limit in any of the service
Rules governing through the agency of the
Commission to the posts in the State Service
and in the Subordinate Service mentioned in
Schedule I and in Schedule II respectively, a
candidate for direct recruitment to the posts
to be filled in by combined competitive
examinations conducted by the Commission
under these Rules must have attained the
age of 21 years and must not have attained
the age of 28 years on the first day of
January next following the last date fixed for
receipt of application.‟
9. It is plain upon the language of Rule 11-B that a
candidate must have attained the age of 21 years
and must not have attained the age of 28 years on
the first day of January next following the last
date fixed for receipt of application. Last day fixed
for receipt of application in this case, was January
1, 1983. First day of January next following that
day would be January 1, 1984. The object and
intent in making Rule 11-B was to prescribe the
age limits upon which the eligibility of a candidate
for direct recruitment to the Rajasthan
Administrative Service and other allied services is
governed. At first impression, it may seem
that a person born on January 2, 1956 would
attain 28 years of age only on January 2,
1984 and not on January 1, 1984. But this is
not quite accurate. In calculating a person‟s
age, the day of his birth must be counted as
a whole day and he attains the specified age
on the day preceding, the anniversary of his
birthday. We have to apply well accepted rules
for computation of time. One such rule is that
fractions of a day will be omitted in computing a
period of time in years or months in the sense that
a fraction of a day will be treated as a full day. A
legal day commences at 12 o‟clock midnight and
continues until the same hour the following night.
There is a popular misconception that a person
does (sic. not) attain a particular age unless and
until he has completed a given number of years.
In the absence of any express provision, it is
well settled that any specified age in law is
to be computed as having been attained on
the day preceding the anniversary of the
birthday.‟
10. In Halsbury‟s Laws of England, 3rd Edn, Vol. 37
para 178 at p. 100, the law was stated thus:
„In computing a period of time, at any rate when
counted in years or months, no regard is, as a
general rule, paid to fractions of a day in the
sense that the period is regarded as complete
although it is short to the extent of a fraction of a
day. ... Similarly, in calculating a person‟s age the
day of his birth counts as a whole day; and he
attains a specified age on the day next before the
anniversary of his birthday.‟
14. It is in recognition of the difference between how a
person's age is legally construed and how it is
understood in common parlance. The legislature
has expressly provided in Section 4 of the Indian
Majority Act, 1875 that how the age of majority is
to be computed. It reads:
„4. Age of majority how computed.--
In computing the age of any person, the day
on which he was born is to be included as a
whole day, and he shall be deemed to have
attained majority, if he falls within the first
paragraph of Section 3, at the beginning of
the twenty-first anniversary of that day, and
if he falls within the second paragraph of
Section 3, at the beginning of the eighteenth
anniversary of that day.‟
The section embodies that in computing the age of
any person, the day on which he was born is to be
included as a whole day and he must be deemed
to have attained majority at the beginning of the
eighteenth anniversary of that day. As already
stated, a legal day commences at 12 o‟clock
midnight and continues until the same hour the
following night. It would therefore appear that the
appellant having been born on January 2, 1956,
he had not only attained the age of 28 years but
also completed the same at 12 o‟clock on the
midnight of January 1, 1984. On the next day i.e.
on January 2, 1984, the appellant would be one
day more than 28 years. The learned Judges were
therefore right in holding that the appellant was
disqualified for direct recruitment to the Rajasthan
Administrative Service and as such was not
entitled to appear at the examination held by the
Rajasthan Public Service Commission in 1983. We
affirm the view taken by the learned Judges as
also the decision in G. Vatsala Rani case, AIR
1967 Mys 135 = (1966) 2 Mys LJ 606.
15. It is rather unfortunate that the appellant should
upon the construction placed on Rule 11-B of the
Rajasthan State and Subordinate Services (Direct
Recruitment by Competitive Examination) Rules,
1962 fail to secure entry into the Rajasthan
Administrative Service and Allied Services of the
Government of Rajasthan merely because he
exceeds the upper age limit just by one day. The
Government ought to consider the question of
relaxing the upper age limit in the case of the
appellant in order to mitigate the hardship, if
otherwise permissible. There is need for a
provision like the proviso to Rule 4 of the Indian
Administrative Service (Appointment of
Competitive Examination) Regulations, 1955,
conferring the power of relaxation on the State
Government under certain conditions without
which a deserving candidate would be rendered
ineligible for appointment."
11.8. In the instant case, the petitioner has not disclosed
date of birth of the Government employee nor did he
produce copy of service book for ascertaining the date
of birth, but in the rejoinder affidavit it is affirmed by
the petitioner that he ―had already completed 56 years
of age‖. Be that be. Given the interpretation of ―attain‖
and ―or‖, if the contention of the petitioner is
examined, it is quite clear that he has attained the age
of 55 years. The Guidelines do not inhibit the
appointing authority/Review Committee/Government
to take up the case of the petitioner beyond 55 years.
Rule 71(a) of the OSC read with Guidelines only
provides that ―attaining 55 years of age‖. There is no
cavil that he has also completed 30 years of service.
The Guidelines, which, as asserted by Sri Sidheswar
Mallik, learned Advocate to have binding effect in view
of State of Uttar Pradesh Vrs. Chandra Mohan Nigam,
AIR 1977 SC 2411, in paragraph 8 has made it
manifest that if review was deferred or not conducted,
the case may be reviewed in the meeting held after
records were available. Noteworthy to notice here that
―the appropriate authority‖ has been defined to mean
―the appointing authority‖ as contained in paragraph
22 of said Guidelines.
11.9. This Court is, under the above perspective of factual
matrix and legal position, of the view that no illegality
or irregularity is found in the decision making process
of the Review Committee for having taken up the case
of the petitioner.
12. It is next contended by Sri Sidheswar Mallik that the
petitioner having responded to the notices
contemplating departmental proceedings, instead of
awaiting for the outcome of such proceedings, the
decision taken by the Review Committee would
tantamount to circumventing the process established
under law and the Government having accepted the
recommendation of the Review Committee the exercise
of power under Rule 71 of the OSC is regarded as
arbitrary.
12.1. This Court would proceed to examine this issue on the
principle laid down by the Hon'ble Supreme Court in
State of Uttar Pradesh Vrs. Chandra Mohan Nigam, AIR
1977 SC 2411, which has been emphasised by the
petitioner. In the said reported case, the said Hon'ble
Court held that, ―after a Government servant serves a
period of 30 years or attains the age of 50 years, he
cannot insist on a right to be retained in the service.
... Even so, an order of compulsory retirement may be
challenged in a Court if it is arbitrary or is actuated by
mala fides.‖
12.2. Scanning through the documents made available on
record it is revealed that the petitioner was put under
suspension by Order dated 20.02.2020 invoking
provisions of Rule 12 of the OCS (CCA) Rules and
proposal to hold enquiry under Rule 15 thereof on the
alleged charges of negligence in duty, suppression of
facts and disobedience of instruction of higher
authorities was communicated to him by issue of
Memorandum dated 17.10.2019 by the Home
Department. Another departmental proceeding has
also been instituted vide Memorandum dated
17.11.2020 on the charges that failure to maintain
absolute integrity and dereliction in duty.
12.3. This Court on a bare scrutiny of document at
Annexure-II-- ―Statement of Imputations of
Misconduct‖-- appended to the Memorandum dated
17.10.2019 reveals the following allegation:
Sri Laxman Kumar Pradhan, OFS Group-A (JB), ACF
herein after called the delinquent, working as I/C
kuldiha Wildlife Range under Balasore Wildlife Division
from 27.09.2018 and continuing till date has committed
the following irregularities:
One elephant caracass identified to be a male was
detected on dated 05.06.2019 6.00 AM near
Bhalubasa-Totachhaka road on right hand side which
is located at about 2 Km. away from Kuldiha Beat and
Kuldiha Section Head Quarters. The carcass was partly
putrefied and tusks were removed from the body and
there was deep cut on the mouth leading to the
suspicion that the tusks have been stolen by some
miscreants. The death of male elephant have occurred
5-6 days before the date of detection of carcass 50 nos.
of temporary Squad persons have been provided to
Kuldiha Wildlife Range with 05 nos. of Foresters and 15
nos, of Forest Guards posted for day and night
monitoring of Wildlife and their habitat. In spite of this it
is a matter of grave concern that the incidence of death
of elephants, the flag ship species of Sanctuary under
his custody are not being detected in time in repeated.
occasions. This has also been viewed by higher
authorities seriously in the recent past when the
carcass of 02 nos. of elephants got near Jodachua
Nalah which was detected quite delay after 15 to 20
days after the putrefaction of body and maggot
formation. Due to late detection of carcasses &
assigning un acceptable reasons there to has raised so
many questions regarding management of the
Sanctuary and protecting the valuable Wildlife of this
State.
After this incidence it was categorically asked by the
undersigned for conducting effective foot patrolling
covering the whole area with regular and periodic
monitoring of patrolling schedule of the staff under his
control. But this is very unfortunate to say that the
repeated late detection of carcass reveals that the
monitoring has not at all been done at his level & he
has been failed to mobilize all the manpower working in
his control in an effective manner to provide safety and
security to the Wildlife of the Sanctuary. In the present
case the incident had happened hardly 2 km. away
from the Section and Beat Head Quarters of Kuldiha.
On road side (quite approachable and motorable) & a
good no. of staff have been stationed there for routine
patrolling of the forests it is difficult to believe that the
miscreants could get intimation, entered into the forests
near to Section/Beat Head Quarters, cut & stolen away
the tusks from the carcass lying on the road side that
his staff could not know which clearly indicates
regarding total failure of intelligence network and lack
of staff coordination, control and mobilization. He has
not taken adequate steps for conservation and
protection of heritage animals which amounts to severe
dereliction in discharging Government duties on his part
being the Officer in-charge of the Range.
Hence he is charged with the following charges:
I. Severe negligence in duty;
II. Suppression of facts;
III. Disobedience of instruction of higher authorities."
12.4. With respect to another disciplinary proceeding the
following is the article of charge vide Memorandum
dated 17.11.2020
"Sri Laxman Kumar Pradhan, Assistant Conservator of
Forest (under suspension), Office of RCCF, Baripada
being a Government servant during his service period
from 08.12.1986 to 31.12.2019, has not submitted
periodical property statements to the appropriate
authority as required under Rule 21 (4) of OGSC Rules,
1959 and Odisha Government Servants‟ Conduct
(Amendment) Rules, 2015. He also neither took any
prior permission nor gave any intimation for
purchase/acquire and selling of immovable and costly
movable assets beyond his permissible limit as required
under Rule 21(183) of Odisha Government Servants‟
Conduct Rules, 1959 and Odisha Government Servants‟
Conduct (Amendment) Rules, 2015.
By the aforesaid acts, Sri Laxman Kumar Pradhan,
Assistant Conservator of Forest, (under suspension) has
committed gross misconduct in not maintaining absolute
integrity and dereliction of his official duty as envisaged
in Rule 3 & 21, of OGSC Rules, 1959 and OGSC
(Amendment) Rules 2015.
As such, the following charges are framed against him.
1. Failure to maintain absolute integrity.
2. Dereliction in duty."
12.5. A vigilance case is also instituted in connection with
aforesaid allegations and it is submitted at the Bar
that the investigation is still in progress.
12.6. Rule 3 of the Odisha Government Servants' Conduct
Rules, 1959 enjoins every Government servant to
maintain at all times absolute integrity, decorum of
conduct and devotion to duty and prohibits any act
which amounts to personal immorality or failure to
discharge duties properly.
12.7. While such was the position, after the petitioner
attained the age of 55 years (no specific date has been
furnished by the petitioner, but merely contended that
he has completed 56 years), as it has already been
analysed with respect to the scope of review for taking
decision on premature retirement in the foregoing
paragraphs, no infirmity is perceived to sustain the
contention of the counsel for the petitioner that after
attaining the age of 56 years, the order of premature
retirement is untenable in the eye of law.
12.8. In Radheshyam Kejriwal Vrs. State of West Bengal,
(2011) 3 SCC 581, following principles were laid down:
"38. The ratio which can be culled out from these
decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution
can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each
other;
(iv) The finding against the person facing prosecution
in the adjudication proceedings is not binding on
the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement
Directorate is not prosecution by a competent court
of law to attract the provisions of Article 20(2) of
the Constitution or Section 300 of the Code of
Criminal Procedure;
(vi) The finding in the adjudication proceedings in
favour of the person facing trial for identical
violation will depend upon the nature of finding. If
the exoneration in adjudication proceedings is on
technical ground and not on merit, prosecution
may continue; and
(vii) In case of exoneration, however, on merits where
the allegation is found to be not sustainable at all
and the person held innocent, criminal prosecution
on the same set of facts and circumstances cannot
be allowed to continue, the underlying principle
being the higher standard of proof in criminal
cases."
12.9. This Court finds support from the decision of the
Hon'ble Supreme Court of India rendered in the case
of Union of India Vrs. Sitaram Mishra, (2019) 9 SCR 585
wherein the following observation has been made:
"10. This part of the admission of the first respondent
clearly indicates that it was as a result of the
handling of the weapon by the first respondent
that the bullets were fired and the death of his
colleague occurred in consequence. None of the
material facts are in dispute.
11. In this view of the matter, the High Court was
manifestly in error in interfering with the findings
of the disciplinary enquiry, particularly when a
learned Single Judge had, in the course of his
judgment, found no irregularity in the enquiry.
The punishment of dismissal is not
disproportionate to the misconduct proved.
12. The second ground, which has weighed with the
High Court, is equally specious. A disciplinary
enquiry is governed by a different standard
of proof than that which applies to a
criminal case. In a criminal trial, the burden lies
on the prosecution to establish the charge beyond
reasonable doubt. The purpose of a
disciplinary enquiry is to enable the
employer to determine as to whether an
employee has committed a breach of the
service rules. *** The fact that the first
respondent was acquitted in the course of the
criminal trial cannot operate ipso facto as a
ground for vitiating the finding of misconduct
which has been arrived at during the course of the
disciplinary proceedings. The High Court, in our
view, has drawn an erroneous inference from the
decision of this Court in Capt. M. Paul Anthony
Vrs. Bharat Gold Mines Ltd. (1999) 3 SCC 679.
The High Court adverted to the following principle
of law laid down in the above judgment:
„*** While in the departmental proceedings
the standard of proof is one of
preponderance of the probabilities, in a
criminal case, the charge has to be proved by
the prosecution beyond reasonable doubts.
The little exception may be where the
departmental proceedings and the criminal case
are based on the same set of facts and the
evidence in both the proceedings is common
without there being a variance.‟
13. It is undoubtedly correct that the charge in the
criminal trial arose from the death of a co-
employee in the course of the incident resulting
from the firing of a bullet which took place from
the weapon which was assigned to the first
respondent as a member of the Force. But the
charge of misconduct is on the ground of the
negligence of the first respondent in handling his
weapon and his failure to comply with the
departmental instructions in regard to the manner
in which the weapon should be handled.
Consequently, the acquittal in the criminal
case was not a ground for setting aside the
penalty which was imposed in the course of
the disciplinary enquiry. Hence, having regard
to the parameters that govern the exercise of
judicial review in disciplinary matters, we are of
the view that the judgment of the Division Bench
of the High Court is unsustainable"
12.10. Reference to State of M.P. Vrs. Bunty, (2020) 17
SCC 654 may be apt in the present context. In the said
case, it is stated thus:
"3. It is not in dispute that respondent Bunty was
involved in a case involving moral turpitude for the
commission of an offence under Sections 392 and
411 of the Penal Code, 1860. He was given benefit
of doubt in the said case and was acquitted vide
judgment and order dated 07.01.2015 and same
has attained finality.
***
6. The learned counsel appearing on behalf of the
State has relied upon the decisions of this Court in
State Vrs. Mehar Singh, (2013) 7 SCC 685, State
of M.P. Vrs. Parvez Khan (2015) 2 SCC 591, State
(UT of Chandigarh) Vrs. Pradeep Kumar, (2018) 1
SCC 797, to contend that when the Screening
Committee has formed an opinion with objectivity
considered the allegations and overall material the
decision is not open to judicial review until and
unless it has acted arbitrarily or its decision is
perverse. The learned counsel further submitted
that mere acquittal on the ground of benefit of
doubt could not have enured in favour of the
appellant so as to be entitled to appointment, as a
matter of course as observed by the Division
Bench of the High Court.
***
10. The learned Single Judge of the High Court in the
factual matrix projected, has rightly relied upon
the decision in State Vrs. Mehar Singh, (2013) 7
SCC 685, wherein this Court has observed as
under:
„35. The police force is a disciplined force. It
shoulders the great responsibility of
maintaining law and order and public order
in the society. People repose great faith and
confidence in it. It must be worthy of that
confidence. A candidate wishing to join the
police force must be a person of utmost
rectitude. He must have impeccable
character and integrity. A person having
criminal antecedents will not fit in this
category. Even if he is acquitted or
discharged in the criminal case, that
acquittal or discharge order will have to
be examined to see whether he has been
completely exonerated in the case
because even a possibility of his taking
to the life of crime poses a threat to the
discipline of the police force. The
Standing Order, therefore, has entrusted the
task of taking decisions in these matters to
the Screening Committee. The decision of
the Screening Committee must be taken
as final unless it is mala fide. In recent
times, the image of the police force is
tarnished. Instances of police personnel
behaving in a wayward manner by misusing
power are in public domain and are a matter
of concern. The reputation of the police force
has taken a beating. In such a situation, we
would not like to dilute the importance and
efficacy of a mechanism like the Screening
Committee created by Delhi Police to ensure
that persons who are likely to erode its
credibility do not enter the police force. At the
same time, the Screening Committee must be
alive to the importance of the trust reposed in
it and must treat all candidates with an even
hand.‟
11. That apart, when we consider the decision of the
three-Judge Bench of this Court in Avtar Singh
Vrs. Union of India, (2016) 8 SCC 471 the Court
observed:
„38.4.3. If acquittal had already been
recorded in a case involving moral
turpitude or offence of heinous/serious
nature, on technical ground and it is not
a case of clean acquittal, or benefit of
reasonable doubt has been given, the
employer may consider all relevant facts
available as to antecedents, and may
take appropriate decision as to the
continuance of the employee.‟
12. In State (UT of Chandigarh) Vrs. Pradeep Kumar,
(2018) 1 SCC 797 this Court has observed:
„15. From the above details, we find that the
Screening Committee examined each and
every case of the respondents and
reasonings for their acquittal and taken the
decision. While deciding whether a
person involved in a criminal case has
been acquitted or discharged should be
appointed to a post in a police force,
nature of offence in which he is
involved, whether it was an honourable
acquittal or only an extension of benefit
of doubt because of witnesses turned
hostile and flaws in the prosecution are
all the aspects to be considered by the
Screening Committee for taking the
decision whether the candidate is
suitable for the post. As pointed out
earlier, the Screening Committee examined
each and every case and reasonings for their
acquittal and took the decision that the
respondents are not suitable for the post of
Constable in Chandigarh Police. The
procedure followed is as per Guideline 2(A)(b)
and object of such screening is to ensure that
only persons with impeccable character enter
police force. While so, the court cannot
substitute its views for the decision of
the Screening Committee.‟
13. The law laid down in the aforesaid decisions
makes it clear that in case acquittal in a
criminal case is based on the benefit of doubt
or any other technical reason, the employer
can take into consideration all relevant facts
to take an appropriate decision as to the
fitness of an incumbent for appointment/
continuance in service. The decision taken by
the Screening Committee in the instant case could
not have been faulted by the Division Bench."
12.11. In the case of Union of India Vrs. Methu Meda,
(2022) 1 SCC 1 it has been held,
"12. In view of the above, if the acquittal is directed by
the court on consideration of facts and material
evidence on record with the finding of false
implication or the finding that the guilt had not
been proved, accepting the explanation of accused
as just, it be treated as honourable acquittal. In
other words, if prosecution could not prove the
guilt for other reasons and not "honourably"
acquitted by the court, it be treated other than
"honourable", and proceedings may follow.
13. The expression "honourable acquittal" has been
considered in State Vrs. S. Samuthiram, (2013) 1
SCC 598 after considering the judgments in RBI
Vrs. Bhopal Singh Panchal, (1994) 1 SCC 541 and
R.P. Kapur Vrs. Union of India, AIR 1964 SC 787,
State of Assam Vrs. Raghava Rajgopalachari,
1967 SCC OnLine SC 1; this Court observed that
the standard of proof required for holding a person
guilty by a criminal court and enquiry conducted
by way of disciplinary proceeding is entirely
different. In a criminal case, the onus of
establishing guilt of the accused is on the
prosecution, until proved beyond reasonable
doubt. In case, the prosecution failed to take
steps to examine crucial witnesses or the
witnesses turned hostile, such acquittal
would fall within the purview of giving
benefit of doubt and the accused cannot be
treated as honourably acquitted by the
criminal court. While, in a case of
departmental proceedings, the guilt may be
proved on the basis of preponderance of
probabilities, it is thus observed that
acquittal giving benefit of doubt would not
automatically lead to reinstatement of
candidate unless the rules provide so.
***
20. In view of the aforesaid, it is clear the
respondent who wishes to join the police
force must be a person of utmost rectitude
and have impeccable character and integrity.
A person having a criminal antecedents
would not be fit in this category. The
employer is having right to consider the
nature of acquittal or decide until he is
completely exonerated because even a
possibility of his taking to the life of crimes
poses a threat to the discipline of the police
force. The Standing Order, therefore, has
entrusted the task of taking decisions in these
matters to the Screening Committee and the
decision of the Committee would be final unless
mala fide. In State (UT of Chandigarh) Vrs.
Pradeep Kumar, (2018) 1 SCC 797, this Court has
taken the same view, as reiterated in State Vrs.
Mehar Singh, (2013) 7 SCC 685. The same view
has again been reiterated by this Court in State
Vrs. Raj Kumar, (2021) 8 SCC 347."
12.12. In the present case Sri Sidheswar Mallik, learned
Advocate strenuously argued that since the criminal
charges has not yet been culminated in logical end,
the Review Committee should have awaited outcome of
proceedings.
12.13. This Court feels persuaded on the material
available on record that the disciplinary proceedings
being initiated for examination of charges as framed,
the same could continue beyond the date of retirement
of the petitioner on attaining age of superannuation.
12.14. It is unequivocal from Rule 6(1) of the Odisha
Civil Services (Pension) Rules, 1992 that ―future good
conduct shall be an implied of every grant of pension
and its continuance under these rules‖. As per sub-
rule (2) thereof, if the pensioner inter alia is found to
have committed grave misconduct, the Pension
Sanctioning Authority may by order in writing,
withhold or withdraw a pension or part thereof. In
view of sub-rule (4) of Rule 6 ibid., on prima facie
consideration of the Government servant leads to
guilty of grave misconduct, there is scope for the
authority concerned to withhold or withdraw pension.
12.15. This Court was drawn attention to sub-rule (2) of
Rule 7 of the Odisha Civil Services (Pension) Rules,
wherein the untrammelled provision spells out that
the departmental proceedings, if instituted while the
Government servant was in service, whether before his
retirement or during his re-employment, shall, after
the final retirement of the Government servant, be
deemed to be a proceeding under this rule and shall
be continued and concluded by the authority by which
they were commenced in the same manner as if the
Government servant had continued in service.
12.16. Sri Sidheswar Mallik, learned Counsel except for
submitting the legal position that entire service
records should have been scanned by the Review
Committee, has not raised any dispute that these
material were not before the said Committee for
appraisal. Perusal of minutes of meeting held on
18.01.2021 (Annexure-B/1 enclosed to counter
affidavit), the Review Committee was appraised of
entire record.
12.17. This apart the Review Committee has taken note
of the fact that the petitioner was at the age of 56
years. The petitioner has not objected to the fact that
he has completed 30 years of service. No material has
been placed by the petitioner with respect to his
joining in the service. As it seems by now the
petitioner has crossed the normal date of retirement
on superannuation. Therefore, it was not irrational or
illogical for the Review Committee to consider that
instead of continuing the disciplinary proceeding
further, to recommend for premature retirement
invoking Rule 71(a) of the OSC so that the same would
not be construed as punitive or stigma. In such event,
there was no impediment for consideration of grant of
pension and other retirement benefits.
12.18. The Review Committee has observed that,
"Sri Laxman Kumar Pradhan has many complaints
against him for corruption misconduct and his integrity
is highly doubtful. His continuance in service will be
detrimental to public interest."
12.19. Black‟s Law Dictionary, Fourth Edition published
in 1968 defines ―integrity‖ as follows:
"Integrity.--
As occasionally used in statutes prescribing the
qualifications of public officers, trustees, etc., this term
means soundness of moral principle and character, as
shown by one person dealing with others in the making
and performance of contracts, and fidelity and honesty
in the discharge of trusts; it is synonymous with
„probity,‟ „honesty,‟ and „uprightness.‟ ***"
12.20. In Union of India Vrs. P. Gunasekaran, (2015) 2
SCC 610 it was held:
"Equally, it was not open to the High Court, in exercise
of its jurisdiction under Article 226/227 of the
Constitution of India, to go into the proportionality of
punishment so long as the punishment does not shock
the conscience of the Court. In the instant case, the
disciplinary authority has come to the conclusion that
the respondent lacked integrity. No doubt, there are
no measurable standards as to what is integrity
in service jurisprudence but certainly there are
indicators for such assessment. Integrity according
to Oxford dictionary is „moral uprightness; honesty‟. It
takes in its sweep, probity, innocence, trustfulness,
openness, sincerity, blamelessness, immaculacy,
rectitude, uprightness, virtuousness, righteousness,
goodness, cleanness, decency, honour, reputation,
nobility, irreproachability, purity, respectability,
genuineness, moral excellence etc. In short, it depicts
sterling character with firm adherence to a code of
moral values."
12.21. Regard may be had to the meaning of ‗doubt' as
referred to by the Hon'ble Supreme Court of India in
Natural Resources Allocation, In re, Special Reference
No. 1 of 2012, (2012) 10 SCC 1 which is to the
following effect:
"28. In P. Ramanatha Aiyar‟s The Major Law Lexicon,
4th Edn., the words „doubt‟ and „question‟ have
been dealt with in the following manner:
„Doubt, question.--
These terms express the act of the mind in staying
its decision. Doubt lies altogether in the mind;
it is a less active feeling than question; by
the former we merely suspend decision; by
the latter we actually demand proofs in order
to assist us in deciding. We may doubt in
silence. We cannot question without expressing it
directly or indirectly. He who suggests doubts
does it with caution: he who makes a question
throws in difficulties with a degree of confidence.
We doubt the truth of a position; we question the
veracity of an author. (Crabb)‟
As per Concise Oxford Dictionary (10th Edn.),
„question‟ means „a doubt; the raising of a doubt
or objection; a problem requiring solution‟.
In Black‟s Law Dictionary, „doubt‟, as a verb, has
been defined as follows:
„Doubt.--
To question or hold questionable.‟
The word „doubt‟, as a noun, has been described
as under:
„Doubt.--
Uncertainty of mind; the absence of a settled
opinion or conviction; the attitude of mind
towards the acceptance of or belief in a
proposition, theory, or statement, in which
the judgment is not at rest but inclines
alternately to either side."
12.22. With the above understanding of ―doubtful
integrity‖, as the petitioner was alleged to be involved
in grave misconduct as is apparent from the
Memorandum of Charges, the continuance in service
would have been detrimental to public interest and
considering the rigmarole of disciplinary proceedings
beyond date of usual retirement and instruction
contained in paragraph 13(iii) of the Guidelines that
explains that ―reports of conduct unbecoming of a
Government servant may also form the basis for
premature retirement‖, the Review Committee seemly
suggested the Government to take step to invoke
provisions of Rule 71(a) of the OSC, so that he would
not be deprived of pension and other retirement
benefit.
12.23. Aforesaid analysis of material available on record,
thus, would go to indicate that there can be no
gainsaying that he was not impeccably honest with
high degree of integrity.
12.24. The ―doubtful‖ integrity does not demand
evidence to be proved, but the Review Committee had
the same in mind. Therefore, there is no scope for
holding that the decision of the Review Committee is
tainted with arbitrariness.
13. It is next contended that no adverse remarks being
available, the petitioner should not have been treated
as of doubtful integrity. In this regard it would be
suffice to state that uncommunicated adverse
remarks, if any, can also be taken into consideration
for the purpose of deciding whether to invoke
provisions of Rule 71 of the OSC. The petitioner has
not placed Performance Appraisal Report(s) on record
for perusal of this Court to substantiate his claim. It is
trite that contention or averment without supporting
evidence needs no examination by the Court. Such
view of this Court is fortified by the following
observation made in Bharat Singh Vrs. State of
Haryana, AIR 1988 SC 2181 = (1988) Supp. (2) SCR
1050 = (1988) 4 SCC 534:
"In our opinion, when a point which is ostensibly a
point of law is required to be substantiated by facts, the
party raising the point, if he is the writ petitioner, must
plead and prove such facts by evidence which must
appear from the writ petition and if he is the
respondent, from the counter-affidavit. If the facts are
not pleaded or the evidence in support of such facts is
not annexed to the writ petition or to the counter,
affidavit, as the case may be, the court will not
entertain the point. In this context, it will not be out of
place to point out that in this regard there is a
distinction between a pleading under the Code of Civil
Procedure and a writ petition or a counter-affidavit.
While in a pleading, that is, a plaint or a written
statement, the facts and not evidence are required to be
pleaded, in a writ petition or in the counter-affidavit not
only the facts but also the evidence in proof of such
facts have to be pleaded and annexed to it. So, the
point that has been raised before us by the appellants
is not entertainable. But, in spite of that, we have
entertained it to show that it is devoid of any merit.
14. It is the last ditch effort of the learned counsel for the
petitioner that the petitioner having not been given
three months' pay and allowances in lieu of notice at
least three months before the date on which he is
required to retire as contemplated under Rule 71 of
the OSC, simultaneously with Office Order dated
20.01.2021 (Annexure-7), the same is liable to be set
aside and the petitioner is required to be restored to
his position.
14.1. Sri Sidheswar Mallik, learned counsel for the
petitioner has referred to Raj Kumar Vrs. Union of
India, AIR 1975 SC 536, wherein it has been observed
that,
"2. Before us the legality of the termination of the
appellant‟s services was questioned only on the
basis of the decision above referred to. It was held
by this Court in that decision as follow:
„Rule 5(1)(a) gives the Government as well as the
employee a right to put an end to the service by a
notice in writing. Under Rule 1(b) the period
prescribed for such notice is one month. The
provision to the sub-rule however gives the
Government an option not to retain the employee
in service till the expiry of the period of the notice:
but to be effective, the termination of service has to
be simultaneous with the payment to the
employee of whatever is due to him. The operative
words of the proviso are „the services of any such
Government servant may be terminated
forthwith by payment‟ showing that the
payment is a condition of the termination of
service forthwith.
Since the words used are plain and
unambiguous they must be construed in their
ordinary sense without any considerations of
policy.
There will always be some time during which the
authority deliberates over the matter and makes
up his mind, and within that time, directions can
be given that the pay and allowances of the
Government servant should be calculated so that
they could be offered to the employee at the time
when the order of termination is served on him.
There is no difficulty in the calculation because the
payment is to be made at the same rates at which
he was drawing them immediately before the
termination of his services. Therefore, there is no
merit in the contention that it would be impossible
for the authorities to give effect to the proviso if
payment was to be made simultaneously with the
service on the employee of order of termination.
This decision had not been rendered when the
High Court dealt with this matter and it is obvious
from the fact that the High Court has granted the
certificate purely because of the subsequent
decision of this Court. Admittedly the pay and
allowances were not paid to the appellant at
the same time as the notice of termination of
his services was served on the appellant. The
only point taken on behalf of the respondents at
the time when the appellant applied for grant of
the certificate was that before making the final
payment it had to be ensured that no Government
dues were outstanding against the appellant and
he was, therefore, called upon by a letter dated
26.06.1971 to collect his dues after surrendering
his identity card, identity batch, C.G.H.S. token
card and all items of uniform. As the order of
termination of services is dated 3rd June and
this letter is said to have been written on
26th June it is no sense an explanation as to
why appellant‟s salary etc. were not paid to
him on the date of termination of his
services. The matter squarely falls within the
decision of this Court earlier referred to. The
appeal will have, therefore, to be allowed and it is
accordingly allowed and the order dated 3.6.1971
is quashed. The respondents will pay the
appellant‟s costs."
14.2. Drawing distinction on facts, Sri Sailaza Nandan Das,
learned Additional Standing Counsel submitted that
the contention of Sri Sidheswar Mallik, learned
Advocate based on the decision in Raj Kumar (supra) is
inapplicable to the present setting of provisions
contained in Rule 71 of the OSC.
14.3. It has been observed in Union of India Vrs. Arulmozhi
Iniarasu, AIR 2011 SC 2731, that,
"Before examining the first limb of the question,
formulated above, it would be instructive to note, as a
preface, the well settled principle of law in the matter of
applying precedents that the Court should not place
reliance on decisions without discussing as to how the
fact situation of the case before it fits in with the fact
situation of the decision on which reliance is placed.
Observations of Courts are neither to be read as
Euclid‟s theorems nor as provisions of Statute and that
too taken out of their context. These observations must
be read in the context in which they appear to have
been stated. Disposal of cases by blindly placing
reliance on a decision is not proper because one
additional or different fact may make a world of
difference between conclusions in two cases."
14.4. In Raj Kumar Vrs. Union of India, AIR 1975 SC 536, the
Hon'ble Supreme Court of India was considering
provisions containing the expression ―the termination
of service has to be simultaneous with the payment to
the employee of whatever is due to him. The operative
words of the proviso are ‗the services of any such
Government servant may be terminated forthwith by
payment' showing that the payment is a condition of
the termination of service forthwith.‖ However, Rule 71
of the OSC does not employ the words like
―simultaneous‖ and ―forthwith‖.
14.5. Reference to State of U.P. Vrs. Dinanath Rai, (1969) 3
SLR 646, as relied upon by the learned Additional
Standing Counsel, is apposite, wherein it is stated
thus:
"3. The plaintiff challenged this order on various
grounds, one ground being that the plaintiff was
not paid one month‟s salary in lieu of notice on
February 9, 1961, when his services were actually
terminated, nor was one month‟s clear notice
served on him before terminating his services. The
trial court, relying on the decision of the High
Court in A.P. Tripathi Vrs. State of U.P., Civil Misc.
Writ No. 3971 of 1958, Judgment delivered on Dec
4, 1963, accepted this contention and held that
since the plaintiff had not been paid salary in lieu
of notice on February 9, 1961 the termination
order was illegal. However, contrary to the
contention of the plaintiff, the trial court held that
the plaintiff was a temporary servant and not a
probationer.
***
6. We are unable to read this rule in the way it
apparently was read by the High Court in A.P.
Tripathi Vrs. State of U.P., Civil Misc Writ No. 3971
of 1958-- Judgment delivered on Dec 4, 1963. In
that judgment Seth, J., did not reproduce the rule
but he observed:
„The notice issued by the Regional Food Controller,
Varanasi Region, Gorakhpur, on 26th March,
1953, terminating the services of the petitioner
along with seven other persons mentioned that the
services of the petitioner shall be terminated after
giving one month‟s pay in lieu of notice of
discharge. The petitioner was never paid one
month‟s pay in lieu of notice was paid to the
petitioner after the counter-affidavit it is mentioned
that one month‟s further pay in lieu of notice was
paid to the petitioner after the petitioner had been
acquitted by the Special Judge on 15th May,
1958. It is also mentioned in the same paragraph
that the pay of the petitioner was not paid at the
time of the termination of his service as at that
time certain proceedings were contemplated
against the petitioner for the alleged
misappropriation of 235 bags of wheat. It is,
therefore, clear that the petitioner was not paid a
month‟s salary in lieu of notice of discharge on
26th March, 1953, when the petitioner‟s services
were actually terminated. The order dated 26th
March, 1953 terminating the petitioner‟s services
without paying him a month‟s salary in lieu of
notice of discharge was, therefore, clearly illegal.‟
***
8. It seems to us that the meaning of the statutory
rule is clear. It gives option to the Government to
either give a month‟s notice or to substitute for the
whole or part of this period of notice pay in lieu
thereof. The rule does not say that the pay
should be given in cash or by cheque at the
time the notice is issued. Knowing the way
the Governments are run, it would be difficult
to ascribe this intention to the rule-making
authority. There is no doubt that the
Government servant would be entitled to the
pay in lieu of notice but this he would get in
the ordinary course."
14.6. Glance at Annexure-A/1 series to the counter affidavit
filed by the opposite parties it is explicit that whereas
the Field Director, Similipal Tiger Reserve-cum-
Regional CCF, Baripada vide Office Order No.444/2F,
dated 18.02.2021 communicated the fact that the
petitioner ―is allowed to draw three months' pay and
allowances in lieu of three months' notice as provided
under clause (a) of Rule 71 of the Odisha Service Code
with effect from 21.01.2021‖, enclosed copies of pay
slips depicting the dues/payments for consideration of
this Court. Thus, this Court is satisfied that there was
compliance of requirement of Rule 71(a) of the OSC.
14.7. In view of distinctive feature available in Rule 71 of the
OSC vis-à-vis Rule which was under consideration
before the Hon'ble Supreme Court in the case of Raj
Kumar (supra), the contention that ―the pay and
allowance in lieu of notice has to be paid simultaneous
with the order of premature retirement‖ does not hold
water. In such view of the matter, the argument of Sri
Sidheswar Mallik, learned Advocate for the petitioner
that as such payments were not made simultaneous
with order of premature retirement, the same is
vitiated, is liable to be repelled.
Conclusion:
15. To get a Government employee retired prematurely
without conducting disciplinary enquiry, as a prelude
regard be had to Aureliano Fernandes Vrs. State of
Goa, (2023) 7 SCR 772, wherein the scope of Article
311 of the Constitution of India has been succinctly
spelt out in the following lines:
"31. This Court has held that in matters of dismissal,
removal or reduction in rank of public servants,
Article 311 of the Constitution is a manifestation of
the essential principles of natural justice. It
imposes a duty on the Government to ensure that
any such decision against the public servant is
preceded by an inquiry that contemplates an
opportunity of hearing to be granted to the public
servant, who is also entitled to make a
representation against such a decision.9
Article 311 reads as under :
"311.Dismissal, removal or reduction in rank of
persons employed in civil capacities under
the Union or a State.--
(1) No person who is a member of a civil service
of the Union or an all India service or a civil
service of a State or holds a civil post under
the Union or a State shall be dismissed or
9 Nisha Priya Bhatia Vrs. Union of India, (2020) 13 SCC 56.
removed by an authority subordinate to that
by which he was appointed.
(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank
except after an inquiry in which he has been
informed of the charges against him and
given a reasonable opportunity of being
heard in respect of those charges:
Provided that where it is proposed after such
inquiry, to impose upon him any such
penalty, such penalty may be imposed on the
basis of the evidence adduced during such
inquiry and it shall not be necessary to give
such person any opportunity of making
representation on the penalty proposed:
Provided further that this clause shall not
apply--
(a) where a person is dismissed or
removed or reduced in rank on the
ground of conduct which has led to his
conviction on a criminal charge; or
(b) where the authority empowered to
dismiss or remove a person or to reduce
him in rank is satisfied that for some
reason, to be recorded by that authority
in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as
the case may be, is satisfied that in the
interest of the security of the State it is
not expedient to hold such inquiry.
(3) If, in respect of any such person as
aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry
as is referred to in clause (2), the decision
thereon of the authority empowered to
dismiss or remove such person or to reduce
him in rank shall be final."
32. To provide a sense of security of tenure to
Government servants, the Framers of the
Constitution have incorporated safeguards in
respect of the punishment or dismissal or removal
or reduction in their rank as provided for in
Clauses (1) and (2) of Article 311. At the same
time, being mindful of the very same public
interest and public good which does not
permit that Government servants found to be
corrupt, dishonest or inefficient be continued
in service, a remedy is provided under the
second proviso to Clause (2) of Article 311
whereunder their services can be dispensed
with, without conducting a disciplinary
inquiry.
33. Thus, the golden thread that weaves through
Articles 309, 310 and 311 is public interest,
directed towards larger public good. Together,
they form a triad and symbolize the overarching
Doctrine of Public Policy."
16. A Division Bench of this Court in Rama Chandra
Mohanty, 2021 (I) ILR-CUT 726 laid down that,
"15. Needless to say that the object of compulsory
retirement is to weed out the dishonest, the
corrupt and the deadwood. It is true that if an
honest and sincere judicial officer is compulsorily
retired, it might lower the morale of his colleagues.
Equally, an officer having sound knowledge of the
law but lacking in integrity or having a dubious
character, is a great danger to the smooth
functioning of the judiciary. What is to be weighed
is the performance of the officer on an overall
evaluation of his entire service period. Above all,
his impartiality, reputation, integrity as well as
moral character should be taken into account."
17. From the averments and responses in the pleadings,
arguments advanced before this Court and notes of
submissions of counsel for respective parties, this
Court finds serious allegations are levelled against the
petitioner for dereliction in duty, insubordination,
suppression of material fact leading to violation of
Rule 3 of the Odisha Government Servants' Conduct
Rules. The Review Committee having considered that
the petitioner was at the age of 56 years and two
disciplinary proceedings were instituted beside
vigilance case. Thus, Review Committee considered the
benevolence of the petitioner. Such a decision to
recommend the State Government for invocation of
provisions of Rule 71 of the OSC to get the petitioner
retire prematurely, is not by way of punitive measure,
rather the same does not pose as stigma. Thus, there
is no scope for the Government/appropriate authority
to exercise power vested under the Odisha Civil
Services (Pension) Rules, 1992 for withholding/
withdrawing pension and retirement benefits.
18. This Court on perusal of record, considering the
submissions of the respective parties and being
abreast of principles on the subject as cited by counsel
for the respective parties and conscious of scope for
exercise of power under Article 226 of the Constitution
of India for judicial review qua the decision of the
Review Committee followed by acceptance by the
Forest and Environment Department for retiring the
petitioner prematurely, finds no arbitrariness. It is
trite that it is not the decision, rather this Court may
examine the decision making process. This Court does
not find any infirmity in decision making process of
the Review Committee.
18.1. Nothing is placed on record to cite that the PARs were
not placed before the Review Committee. Before this
Court except for averment, nothing tangible is made
available by the counsel for the petitioner to show that
he had good service career. Be that as it may, this
Court has limited scope to comment upon the
expertise of the Review Committee. So long as Rule 71
of the OSC does not restrict exercise of power by
providing with conditions, this Court does not find any
reason to interfere with the rational decision taken by
the Review Committee.
18.2. Basing on the parameters laid down by the Hon'ble
Supreme Court of India and High Courts, the Review
Committee has taken decision being conscious of the
fact that the petitioner attained the age of 56 years. It
is not a case of the petitioner that he had not
completed more than 30 years of service. By
suggesting premature retirement to the Forest and
Environment Department, no prejudice appears to
have caused. There being no pecuniary loss caused to
the Government of Odisha, appropriate decision has
been taken under Rule 71(a) of the OSC, as
continuance of the petitioner in service would not be
conducive in public interest. Taking cue from the
meaning of ―doubtful‖ and ―integrity‖ as noticed by the
Hon'ble Supreme Court of India in the decisions as
referred to supra, it is unequivocal that the Review
Committee has taken relevant material and germane
factors into consideration to doubt the integrity of the
petitioner.
18.3. Hypothetically, on continuance of disciplinary
proceedings not only the petitioner would be deprived
of full salary as he was under suspension, but also
may face withholding/withdrawing of pension and
retirement benefit in terms of Rule 7 of the Odisha
Civil Services (Pension) Rules, 1992. There may be
likelihood of the petitioner being found guilty of one or
more charges as levelled against him in the
disciplinary proceedings. In such eventuality, he may
have to visit with major penalty like dismissal from
service which may entail grant of pension and
retirement benefit invoking Rule 45 of the Odisha Civil
Services (Pension) Rules. Nonetheless, the decision
taken by the Government of Odisha on the
recommendation of the Review Committee would posit
beneficial for the petitioner to live dignified life after
retirement as the order of premature retirement would
not be treated as punitive measure leading to stigma.
18.4. The decision of this Court in Single Bench rendered in
Ajit Kumar Mohapatra Vrs. State of Odisha, 2023 SCC
OnLine Ori 6135 relied on by the learned Counsel is
distinguishable on facts. It is also noticed that at
paragraph 28 of the said decision the following is
reflected:
"28. He also referred to the judgment of a Division
Bench of this Court in the case of Epari Vasudeva
Rao Vrs. State of Odisha, 2014 (II) OLR 381 to
demonstrate the scope of judicial review in the
matter of premature retirement from service of a
Government employee and submitted that when
such an order has been challenged in a Court of
law, the Court of law has to examine whether any
ground or material germane to issue exists or not.
The relevant paragraphs which have been relied
upon by the learned Senior Counsel appearing for
the petitioner that is Paragraphs Nos. 44, 48, 49,
50, 51, 55 & 58 have been quoted herein below:
„***
49. In the case of High Court of Judicature at
Patna, through R.G. Vrs. Shyam Deo Singh,
[Civil Appeal No. 2529 of 2002, disposed of
on March 28, 2004, reported at (2014) 4 SCR
541], a three-Judge Bench of the Hon‟ble
Supreme Court, held as under:
„9. The subsequent ACRs of the respondent
for the years 1997-1998 and 2000-
2001 are sufficiently positive and
depicts the respondent as an efficient
judicial officer with a good reputation
for honesty and impartiality. The
respondent was promoted to the post of
District and Sessions Judge on
5.9.1998. By Notification dated
17.2.2000 he was promoted to the
selection grade of the Bihar Superior
Judicial Service with effect from
1.1.1997. Therefore, not only the
adverse remark dated 15.12.1995 was
not acted upon but subsequent thereto
promotion to the highest level in the
district judiciary as well as selection
grade in the said cadre was granted to
the respondent. Promotion to the
highest post of District Judge and
placement in the selection grade is on
an assessment of positive merit and
ability. The said promotion (s),
therefore, would have the effect of
wiping out the adverse remark dated
15.12.1995. Such a view has in fact
been expressed in Brij Mohan Singh
Chopra Vrs. State of Punjab, (1987)
2 SCC 188 (para 10). In the light of
the above facts, we do not see how the
High Court, on the administrative side,
can be found to be justified in refusing
to continue with the service of the
respondent beyond the age of 58 years.
The order dated 20.2.2001 passed by
the High Court setting aside the said
decision, therefore, will have to be
affirmed and the present appeal
dismissed. We order accordingly."
50. Now, let us see what are the performances of
the petitioner during later years. The above
discussed two adverse remarks relate to the
years 1985 and 1998.
***"
18.5. It is observed that the decision in Brij Mohan Singh
Chopra Vrs. State of Punjab, (1987) 2 SCC 188 so far as
consideration of adverse entries of remote past has
been taken note of in Rajasthan State Road Transport
Corporation Vrs. Babu Lal Jangir, (2013) 10 SCC 551
by the Hon'ble Supreme Court of India, wherein it is
stated that,
"No doubt, in Gurdas Singh case, (1998) 4 SCC 92 =
AIR 1998 SC 1661, it has been specifically remarked
that the judgment in Brij Mohan Singh Chopra, (1987) 2
SCC 188 has been overruled in Baikuntha Nath Das,
(1992) 2 SCC 299. It would be relevant to point out that
even Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC
1661 was a case relating to uncommunicated adverse
entries. Therefore, Brij Mohan Singh Chopra, (1987) 2
SCC 188 was overruled only on the second
proposition."
18.6. In Central Industrial Security Force Vrs. HC (GD) Om
Prakash, 2022 LiveLaw (SC) 128 = (2022) 2 SCR 203 it
has been reiterated as follows:
"In another judgment reported as Secretary to the
Government Vrs. Nityananda Pati, (1993) Supp. 2 SCC
391 the order of the High Court setting aside the
compulsory retirement for the reason that certain
uncommunicated adverse remarks were taken into
consideration was set aside by this Court."
18.7. In Ajit Kumar Mohapatra Vrs. State of Odisha, 2023
SCC OnLine Ori 6135 this Court has referred to a
decision rendered in Captain Pramod Kumar Bajaj Vrs.
Union of India, (2023) 2 SCR 30, which is a case of
beyond doubtful integrity. The Hon'ble Supreme Court
held in the said case as follows:
"38. *** It has been repeatedly held that any
exercise of power that exceeds the
parameters prescribed by law or is motivated
on account of extraneous or irrelevant
factors or is driven by malicious intent or is
on the face of it, so patently arbitrary that it
cannot withstand judicial scrutiny, must be
struck down. In the instant case, though the
appellant has levelled allegations of
institutional bias and prejudice against the
respondents, particularly against the then
Chairman, CBDT who was a Member of the
Review Committee, the said officer was not
joined by the appellant as a party before the
Tribunal or the High Court, for him to have
had an opportunity to clarify his stand by
filing a counter affidavit. Hence, these
allegations cannot be looked into by this
Court.
39. De hors the aforesaid allegations of institutional
bias and malice, having perused the material
placed on record, we find merit in the other
grounds taken by the appellant. It is noticed that
though FR 56(j) contemplates that the respondents
have an absolute right to retire a Government
servant in public interest and such an order could
have been passed against the appellant any time
after he had attained the age of fifty years, the
respondents did not take any such decision till the
very fag end of his career. The impugned order of
compulsory retirement was passed in this case on
27th September, 2019 whereas the appellant was
to superannuate in ordinary course in January,
2020. There appears an apparent
contradiction in the approach of the
respondents who had till as late as in July,
2019 continued to grade the appellant as
„Outstanding‟ and had assessed his integrity
as „Beyond doubt‟. But in less than three months
reckoned therefrom, the respondents had turned
turtle to arrive at the conclusion that he deserved
to be compulsorily retired. If the appellant was
worthy of being continued in service for little short
of a decade after he had attained the age of 50
years and of being granted an overall grade of 9
on the scale of 1 - 10 on 31st July, 2019 it has not
been shown as to what had transpired thereafter
that made the respondents resort to FR 56(j) and
invoke the public interest doctrine to compulsorily
retire him with just three months of service left for
his retirement, in routine. In such a case, this
Court is inclined to pierce the smoke screen and on
doing so, we are of the firm view that the order of
compulsory retirement in the given facts and
circumstances of the case cannot be sustained.
The said order is punitive in nature and was
passed to short-circuit the disciplinary
proceedings pending against the appellant
and ensure his immediate removal. The
impugned order passed by the respondents does
not pass muster as it fails to satisfy the
underlying test of serving the interest of the
public."
18.8. The present case is of the nature ―doubtful integrity‖
as opposed to ―inefficiency‖ on account of adverse
remarks much less uncommunicated adverse
remarks. The petitioner herein having alleged to have
been negligent for late detection of carcass without
tusk of elephant. Material did exist before the Review
Committee to examine whether continuance of the
petitioner would be detrimental to public interest. The
recommendation for premature retirement being made
based on evidence, the allegation of the petitioner that
the case falls within scope of ―no evidence‖ does not
stand to reason. The conduct of the petitioner being
considered by the Review Committee to be of ―doubtful
integrity‖, premature retirement was recommended,
which the Government of Odisha in Forest and
Environment Department accepted. Nothing is cited by
the petitioner to demonstrate that the opposite parties
have taken into consideration extraneous material and
allowed him to retire prematurely as a punitive
measure so as to hold that the decision of the Review
Committee fell foul of.
18.9. This Court does acknowledge that the Review
Committee thoroughly followed the parameters laid in
the Guidelines dated 24.09.2019 (Annexure-10). In the
present context it can be stated based on such
Guidelines that it is not prudent in the public interest
to retain a Government employee in service if he lacks
integrity and such employee, whose integrity is
doubtful, is liable to be retired prematurely.
19. It may be pertinent to deal with another facet of
questioning the decision of administrative authority
before the writ Court to invoke power of judicial review
is mala fide. It needs mention that no mala fide is
alleged by Sri Sidheswar Mallik, learned Advocate for
the petitioner. Therefore, it is believed that the
members of the Review Committee have proceeded to
consider the case of the petitioner for premature
retirement under Rule 71 of the OSC bona fide.
19.1. In this regard, regard be had to R.L. Butail Vrs. Union
of India, (1971) 2 SCR 55, wherein it has been
observed that,
"That the requisite notice in terms of cl. (j) of F.R. 56
was served on the appellant is not in dispute. In Union
of India Vrs. Col. J. N. Sinha, (1971) 1 SCR 791 this
Court stated that F.R. 56(j) in express terms confers on
the appropriate authority an absolute right to
retire a Government servant on his attaining the
age of 55 years if such authority is of the opinion
that it is in public interest so to do. The decision
further states:
„If that authority bona fide forms that opinion,
the correctness of that opinion cannot be
challenged before courts. It is open to an aggrieved
party to contend that the requisite opinion has not been
formed or the decision is based on collateral grounds or
that it is an arbitrary decision.‟ ***
It may well be that in spite of the work of the appellant
being satisfactory, as he claimed it was, there may
have been other relevant factors, such as the history of
the appellant‟s entire service and confidential reports
throughout the period of his service, upon which the
appropriate authority may still decide to order
appellant‟s retirement under F.R. 56(j). Further, there is
nothing to show that the impugned order was not in
public interest. As aforesaid, Col. J.N. Sinha‟s case,
(1971) 1 SCR 791 clearly lays down that the question
as to the correctness of such a decision by the
appropriate authority, provided it is bona fide, would
not be gone into by this Court. We have already
negatived the plea of mala fides raised by the
appellant. Consequently, a plea of lack of bona fides
can hardly be entertained. Likewise, the plea that the
appropriate authority had not applied its mind must
also fail in view of the clear averments made in that
regard in the affidavits cited earlier, no reason having
been adequately shown to discard those statements as
untrue or otherwise unbelievable."
19.2. So long as power is vested in the appropriate authority
under Rule 71 of the OSC and said authority has bona
fide exercised such power notwithstanding pendency
of disciplinary proceedings under the OCS (CCA) Rules
or criminal case, it cannot be stated that the Review
Committee exercised such power arbitrarily.
20. Under the aforesaid premises, for the discussions
made and reasons ascribed hereinabove this Court
finds neither non-application of mind on the part of
the Review Committee in the decision nor was there
any arbitrariness in the decision making process on
the part of the opposite parties. As regards attack of
the petitioner on the ground that the decision of the
Review Committee in making recommedation for
premature retirement is actuated with extraneous
reasons, this Court finds no substance to show
indulgence.
21. In the wake of the above, finding no infirmity nor
illegality in the Order dated 20.01.2021 of the
Government of Odisha in Forest and Environment
Department (Annexure-7) passed in exercise of powers
conferred under clause (a) of Rule 71 of the Odisha
Service Code accepting the recommendation for
premature retirement of the petitioner vide Minutes of
the Meetings of the Review Committee held on
18.01.2021, this writ petition is dismissed, but in the
circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
High Court of Orissa, Cuttack
The 4th November, 2024//Aswini/Laxmikant/Suchitra
Designation: Personal Assistant (Secretary-in-charge)
Location: ORISSA HIGH COURT, CUTTACK
Date: 04-Nov-2024 19:40:07
