Uttarakhand High Court
Smt. Rekha Shrikunj vs State Of Uttarakhand And Others on 29 April, 2022
Reserved Judgment
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (S/S) No. 375 of 2020
Smt. Rekha Shrikunj ... Petitioner
Vs.
State of Uttarakhand and others ... Respondents
With
Writ Petition (S/S) No. 552 of 2020
Kunwar Singh ... Petitioner
Vs.
State of Uttarakhand and others ... Respondents
Advocates : Mr. M.S. Tyagi Senior Advocate, assisted by Mr. Sunil Chandra,
Advocate, for the petitioner in WPSS No. 375 of 2020
Mrs. Neetu Singh, Advocate, along with Mr. Vinod Chandra,
Advocate, for the petitioner in WPSS No. 552 of 2020
Mrs. Anjali Bhargava, Addl. CSC, for the State of Uttarakhand
Mr. Himanshu Aswal, Advocate, holding brief of Mr. Navnish
Negi, Advocate, for respondent Nos. 2 & 3 in WPSS No. 375 of
2020
Reserved on : 02.03.2022
Delivered on : 29.04.2022
Hon'ble Sharad Kumar Sharma, J.
The above mentioned, two writ petitions arises out of
the same impugned order dated 14th January 2020, which
has been passed by the respondent No. 2, herein i.e.
District Judge, District Haridwar, by virtue of which, the
learned District Judge, on the basis of an administrative
order dated 14th January 2020, which was in turn based
upon the report of the Screening Committee dated 13th
December 2019, as well as, the order of the
Administrative Officer dated 24th December 2019, had
passed the order, directing compulsory retirement of the
petitioner's in the exercise of its inherent powers under
Rule 56 (C) of Financial Handbook, Part II to IV.
2. In Writ Petition (S/S) No. 375 of 2020, the facts
which are slightly different then to the other connected
matter, it is that the petitioner was initially appointed as
class-III employee in the district judgeship of Haridwar,
on 13th November 1991, in the then pay-scale, which was
admissible to the said cadre of post, carrying a scale of
Rs. 950-1500. As a consequence of the petitioner's
appointment, his services records were annually assessed
and annual confidential report was recorded by the
competent appointing authority, which the petitioner
contends, that as per the entries, which had been made
therein, the petitioner past carries a satisfactory service
record.
3. The Senior Administrative Officer of the District
Judgeship of Haridwar, on the basis of the scrutiny of
service records of different set of employees, who were
working in the district judgeship had marked out and
identified, as many as 57 such employees, who had
attained the age of 50 years and as per the scrutiny of
their respective service records, their work and conduct
were not found to be satisfactory and that is why in
furtherance of the Government Orders dated 20th
February 2002 and 30th June 2003, the respondent No. 2,
had issued letters for compulsory retirement of the State
employees, who had attained the age of 50 years, as they
were determined to be the deadwood in the organisation.
4. The respondent No. 2, on the basis of inclusion the
name of the petitioner in the said list, which had been
submitted by the Senior Administrative Officer based
upon the aforesaid Government Orders, and the report of
screening committee the name of the petitioner was
shown at Sl. No. 25, which revealed her date of birth, as
to be 22nd February 1962 and as such her superannuation
even otherwise as per the service records otherwise would
have been under normal course due after two years from
the date of passing of the impugned order.
5. On the recommendations of the Senior
Administrative Officer of the district judgeship, the
Screening Committee prepared its report on 13th
December 2019, holding thereof that on perusal of the
respective service records of the petitioner, the then
Presiding Officer under whom the petitioner was working
and as per the ACR entries had issued a warning order, to
the petitioner with regards to her coming late to office
and accordingly, on the basis of the said conduct of the
petitioner, the Senior Administrative Officer of the
district judgeship, had included her name in the list.
6. The learned counsel for the petitioner submitted that
the said ACR entries or the report, which had been thus
submitted by the Screening Committee with regards to
the set of allegations of the Presiding Officer, on 16th
August 2016, there is no such kind of entry, which had
been made in the ACR of the petitioner, which could
have been retrieved by the screening committee, for the
purposes of taking of an action against the petitioner
under Rule 56 (C) of the Financial Handbook Volume 2,
Part II to IV.
7. The learned counsel for the petitioner has further
submitted that the said set of allegations levelled on the
petitioner of coming late to office, except for the
observation made by the Presiding Officer on 16th
August 2016, there happens to be no such other serious
entry recorded in the ACRs of the petitioner, coupled
with the fact that the petitioner has not received any
information of the ACRs for the year 2018-19 and 2019-
20 onwards till the date of passing of the impugned order.
8. Learned counsel for the petitioner further submitted
that the set of allegations levelled by the Presiding
Officer, which has been extracted by the screening
committee; in its report dated 13th December 2019, could
not be relied with, on account of the fact that the said
order of warning, which had been issued by the Presiding
Officer, due to his transfer, it is absolutely wrong to say,
that as on 15th April 2019, the Presiding Officer had
given any warning of any nature whatsoever with regards
to delayed attendance in the office.
9. Learned counsel for the petitioner further submitted
that if the observations which had been made by the
screening committee, if that itself is taken into
consideration with regards to the computer training,
which the petitioner was required to undergo, he
submitted that ever since her joining into the services, as
a Class-III employee i.e. on 13th November 1991, in fact
she has been doing the work of drafting in handwriting
and not on computers, hence the screening committee's
report cannot be taken, as to be the exclusive basis for
passing the order of compulsory retirement. Apart from it,
according to the petitioner that the screening committee
itself was not competent to make any recommendations
for passing the order of compulsory retirement, based on
the Government Orders referred above. Hence, she
submitted that due to lack of the competence of the
screening committee, no recommendations could have
been expected to be made by respondent No. 2, for
invoking his powers under Rule 56 (C) of the Financial
Handbook Volume 2, Part II to IV.
10. The learned counsel for the petitioner further
submitted that the intimation of the impugned order dated
4th January 2020, was never parted to the petitioner
within a reasonable time frame; but rather in a hasty
manner by respondent No. 2, by giving a telephonic call,
all of a sudden calling upon the petitioner on 31st January
2020, whereby it was for the first time intimated to her
that she was compulsorily retired based on the report of
the screening committee.
11. In connected writ petition, being Writ Petition
(S/S) No. 552 of 2020, in this case too, in fact, the
impugned action, which had been questioned is yet again
the same impugned the order of 14th January 2020,
passed by responded No. 2, yet again on the basis of the
report of the screening committee dated 13th December
2019, whereby the petitioner was compulsorily retired by
respondent No. 2, by invoking its powers under Rule 56
(C) of the Financial Handbook Volume 2, Part II to IV.
12. The only factual distinction, which is there in the
present case at hand is, that the petitioner has come up
with the case that he was appointed in the district
judgeship of respondent No. 2, as a stenographer as back
as on 4th August 1992. Petitioner contends that owing to
the beneficial piece of legislation, which intended to
motivate the employees, who are already working in a
Government Organisation the Government had issued a
Government Order No. 181 dated 18th October 2008,
whereby, the petitioner contends that after considering the
service record of the petitioner and diligence with which
he claims that he was efficiently discharging his duties,
the respondent by virtue of the letter dated 18th April
2019, had sanctioned a special service benefit by way of
monetary remuneration to the petitioner, apart from it, the
petitioner was also sanctioned with a promotional pay-
scale and was made a permanent employee in the
organisation of district judgeship, after his initial
appointment vide letter dated 12th July 2016.
13. He submits, that grant of promotional pay scale and
a special remuneration under the incentive programme of
the State, applicable for the State Government
employees, that in itself is sufficient enough to establish
the fact beyond doubt that the petitioner was having an
unblemished service record with the respondents.
14. The petitioner's grievance herein too is that by
drawing the powers and that too under the general
directions, issued by the State by the Order No. 217 dated
6th July 2018 and the Government Order dated 24th July
2019, which contemplated, that in all the Government
Orders, a screening has to be done, of all the employees
who had been working with the State and had attained the
age of 50 years. The evaluation of the work and
efficiency was required to be done which was intended
for the purposes of weeding out the deadwoods for the
purposes of attracting Rule 56 (C) of the Financial
Handbook Volume 2, Part II to IV.
15. The petitioner in this case had submitted that earlier
too Government of Uttarakhand had issued almost a
similar Government Order dated 28th February 2002,
which provided the parameters for constitution of a
Screening Committee for the various cadres of the
employees in an organisation and the screening
committee which was thus intended to be constituted
under the light of the said Government Order dated 22nd
February 2002, it had prescribed that the constitution of
the screening committee under the State Government
Order, it mandatorily required that the screening
committee itself should be constituted by the appointing
authority, who has to be its Chairman and no other officer
lower than the rank of the appointing authority could
constitute or head the screening committee for assessing
the service records of the employees falling within the
ambit of the Government Orders dated 6th July 2017 and
24th July 2019, for the purposes of passing any orders of
compulsory retirement under Rule 56 (C) of the Financial
Handbook Volume 2, Part II to IV. Hence, in this case the
petitioner has given a challenge to the very competence
of the screening committee its constitution and its reports
submitted thereto i.e. dated 13th December 2019, on the
ground that the screening committee itself was faulty in
its constitution and thus the same cannot be extracted, as
to be the foundation and basis for passing an order of
compulsory retirement.
16. The petitioner of this writ petitions, has submitted
that in fact the respondents have adopted a very careless
attitude and rather in a very casual way, without
appropriately screening the ACRs of the petitioner merely
because of the fact that he has attained the age of 50 years
the petitioner has been compulsorily retired. In fact, they
have arbitrarily adopted a method to take screening of
few of the employees, which is discriminatory. The
petitioner submitted that since he is physically fit and his
service records shows that he is efficiently discharging
his duties, he ought not to have been compulsorily retired
from the services merely based upon the report of the
screening committee, which had been submitted by
respondent No. 2.
17. The first writ petition was heard by the co-ordinate
bench of this Court and had invited the respondents to file
their counter affidavit vide its order dated 18th March
2020. Steps were directed to be taken for effecting
services on respondent Nos. 2 and 3. The respondents
were noticed and they had put in appearance and they
have filed their counter affidavit, denying the writ
averments and supporting the report which had been
submitted by the screening committee and the impugned
order of compulsory retirement dated 14th January 2020.
18. In the principal counter affidavit, which has been
filed by respondent No. 2, whose order was under
challenge, the respondent No. 2, had denied the writ
averments and had submitted, that the action, which has
been taken for compulsory retirement of the petitioners, is
based upon the screening committee's report, and same in
turn is based upon the assessment of the respective
service records, the past antecedents, based on the annual
confidential entries, the act of misconduct and negligence
in performance of duties and not properly maintaining the
office records during her service tenure and hence she
submitted, that the action taken on the basis of the
government order dated 20th February, 2020 and 6th July
2017, was well within the ambit and framework of the
Rule 56 (C) of the Financial Handbook Volume 2, Part II
to IV.
19. Learned counsel for respondent No. 2, further
submitted that the screening committee, had thoroughly
scrutinized the service records of the petitioners' for the
tenure of service of last 10 years of service, prior to
passing of the impugned order of compulsory retirement
and since the appointing authority, who happens to be the
Chairman of the screening committee nominated the
senior officer as a member of the screening committee
and based on that recommendations, which had been the
compulsory retirement order has been passed, it did not
suffered from any apparent error of law, as it is always
the prerogative of the employer to exercise its powers
under Rule 56 (C) of the Financial Handbook Volume 2,
Part II to IV.
20. The respondent in opposing the Writ Petition (S/S)
No. 375 of 2020, submitted that it shows, that prior to
recording of the censure entries, the comments of the
Presiding Officer about the complaints made by him and
the observations made during the surprise inspection
which was made on 23rd August 2016, and the
observations which were made in the service records and
the warning letter issued to the petitioner with regards to
the negligence in performing of her duties, which was
never pleaded and there was no improvement despite
warning as such the respondent No. 2, supported, the
contention of passing of the order of compulsory
retirement.
21. In Writ Petition (S/S) No. 375 of 2020, the learned
counsel for the respondent No. 2, had, in order to justify
the observations which were made by the report of the
Screening Committee dated 13th December 2019, had
filed a supplementary counter affidavit on 18th
November 2021, placing on record the conclusions and
the recommendations of the screening committee, as well
as the reference has also been made to some of the ACR
entries, which were recorded in the service record of the
petitioner from time to time. The petitioner did filed the
rejoinder affidavit, but very vaguely, she has not been
able to successfully deny the averments pertaining to the
entries of the service records because it was a fact, which
was apparent from the records, itself about the
administrative action, which has been taken against the
petitioner.
22. In Writ Petition (S/S) No. 552 of 2020 also, the
respondent Nos 1 and 2 were directed to file their counter
affidavit and in response thereto, the counter affidavit has
been filed by respondent No. 2, and in the counter
affidavit thus filed apart from making reference to the
Government Orders dated 20th February 2002 and 6th
July 2017, the respondent No. 2, had submitted that the
screening committee, as defined under the Financial
Handbook, as well as, under the Government Orders,
which were only an initial platform which was provided,
intended, to access the service records prior to invocation
of the powers under Rule 56 (C) of the Financial
Handbook Volume 2, Part II to IV, and the screening
committee did contained the competent and firmly skilled
and experienced persons, who had the knowledge and
ability to apply in appropriate aptitude for the purposes of
assessing the service records of the employees. In fact, it
was submitted that according to the Annual Confidential
Report, which had been submitted in relation to the
petitioner i.e. Kunwar Singh, there were various adverse
entries, which were found recorded and that is why the
screening committee, while assessing the ACRs and
personal files of the employee, had made the following
observations:-
**adkfeZd ds lsok vfHkys[kksa ls le;≤ ij o'kZ 2018
rd izdV gq, mDr vkpj.k ls Li'Vr% fofnr gksrk gS fd
dkfeZd }kjk O;kdj.kh; Kku ds vHkko ds lkFk vius
drZO;ksa dk fuoZgu fd;k tk jgk gS o orZeku rd dkfeZd
esa dksbZ xq.kkRed lq/kkj ugha gqvk gS rFkk VkbZfiax dk;Z
le; ij iw.kZ u fd;k tkuk Hkh Li'V gqvk gSA pwWafd
dkfeZd esa dksbZ xq.kkRed lq/kkj gksuk fofnr ugha gks jgk gS]
fygktk mDr dkfeZd n{k dkfeZd dh Js.kh esa vkuk ugha
ik;k tkrk gSA**
23. Based on the aforesaid observations, the respondent
No. 2, supported the action which had been taken. In
order to meet out the arguments pertaining to the
competence and of the constitution of the screening
committee, it was pleaded that as per the order dated 6th
July 2019 (Annexure 3 to the counter affidavit), the
screening committee has been constituted, which was
headed by the District Judge, consisting of two other
judicial officers of HJS rank, for the purposes of
undertaking the task of scrutinisation of the records of the
services prior to passing of any order of compulsory
retirement and that is why the Administrative Officer of
the district judgeship of Haridwar, on scrutiny of
respective service records, had recommended the name of
the petitioner for passing an order of compulsory
retirement on the basis of the report of the screening
committee dated 13th December 2019 and for the said
purpose, the annual confidential report of the petitioner
for the year 1998 and 1999, where the warning was given
by the district judgeship, to the petitioner in the year
2013, the complaints made by the Presiding Officer
against the petitioner at various stages to the District
Judge, in the year 2018, all the facets were considered
and thereafter only a conclusion was arrived at by
respondent No. 2, based on the recommendations of the
screening committee, on scrutiny of ACR and personal
file of the petitioner and he was determined to be weeded
out by passing an order of compulsory retirement.
24. The respondent, in the counter affidavit,
particularly, the pleadings which has been raised in para
18, while replying to the pleadings of para 14 of the writ
petition, had submitted that on the scrutiny of the
Government Orders dated 22nd February 2002 and 6th
July 2017, it had submitted that as per Government Order
No. 131 in its clause (5), has provided that for the
purposes of invoking powers under Rule 56 (C) of the
Financial Handbook Volume 2, Part II to IV, for passing
of an order of compulsory retirement of an employee, it is
not possible to consider the entire service records, but it
had rather provided that prior to the action of compulsory
retirement being taken the past service records of 10 year,
is required to be taken into consideration and accordingly,
the reference has also been made to paras 4 and 5 of the
Government Order dated 6th July 2017, laying down the
importance and relevance of scrutinisation of the
confidential service record entries. The relevant extracts
of the parameters provided by the Government Orders are
extracted here under:-
**5- & fopkj.kh; vfHkys[k & vfuok;Z lsokfuo`r dk fu.kZ;
ysus ds fy, ;|fi lEcfU/ku ljdkjh lsod ds lEiw.kZ
lsokdky ds leLr vfHkys[k ns[ks tkus pkfg, rFkkfi fo"ks'k
cy vafre nl o'kZ ds vfHkys[kksa ij fn;k tkuk pkfg, vkSj
n`f'Vdks.k ls fu.kZ; fy;k tkuk pkfg, fd lEcfU/kr
ljdkjh lsod dh n{[email protected];fu'Bk dk D;k ,slk gS]
ftlds vk/kkj ij mls tufgr esa vfuokZ; :i ls
lsokfuo`r fd;k tkuk pkfg,A***
Para 4th and 5 of GO dated 06-07-2017 States
**¼4½ ,sls vkns"k dks ikfjr djrs le; vf/kdkjh ds xksiuh;
fjdkMZ esa izfrdwy izfo'Bh dks /;ku esa j[kuk pkfg,
;Fkksfpr ofj;rk nsuh pkfg,A
¼5½ ;gka rd fd xksiuh; fjdkWMZ esa vuqlwfpr izfo'Bh ij
Hkh fopkj fd;k tkuk pkfg,A**
25. In response to the counter affidavit, the petitioner
did file rejoinder affidavit and he has submitted that his
annual confidential report, which has been considered by
the screening committee, in fact, his service record has
never been properly adjudged to the service and rather he
was granted promotion despite, there being some minor
remarks, which though he contends, that it was never
communicated to the petitioner and coupled with the fact
that since he was sanctioned with the higher pay-scale as
per the Sethi Committee's recommendation, such minor
adverse remarks, available on the records cannot be
picked and chosen arbitrarily later on, for the purposes of
screening the petitioner, merely because of the fact that
he has attained the age of 50 years, he too could be
considered in the light of the general directions, as issued
by the State for passing the orders of compulsory
retirement.
26. In this writ petition too, the State has filed a counter
affidavit, as well as, the short counter affidavit, wherein
the ground taken by the petitioner in the writ petition
pertaining to giving challenge to the very constitution of
the screening committee, it had already been observed,
that the two senior judicial officers of Additional District
Judge rank, were nominated by the competent authority
and the approval for the same, also finds reference as
mentioned in the order of Administrative Officer dated
4th January 2020, that means the appointing authority and
the two senior members, which were nominated to be the
members of the Committee by the appointing authority,
had contributed to a unanimous decision of passing the
order of compulsory retirement and the entire action,
which was taken under the direct and effective control of
the appointing authority and hence it does not suffer from
any apparent error as argued.
27. For the purposes of meeting out the arguments
which had been as raised by the petitioner pertaining to
the challenge given to the modalities and the observations
made by the screening committee dated 13th December
2019, and that of the order of compulsory retirement
dated 14th January 2020, it becomes relevant for this
Court to extract Rule 56 (C) of the Financial Handbook
Volume 2, Part II to IV, as substituted by U.P.
Fundamental Rules 56, by Amending Act 1976 w.e.f.
16.11.1976, in order to answer the arguments, as
extended by the learned counsel for the petitioners. The
relevant part is extracted hereunder:-
"(c) Notwithstanding anything contained in
Clause (a) or Clause (b), the appointing
authority may, at any time, by notice to any
Government servant (whether permanent or
temporary), without assigning any reason,
require him to retire after he attains the age of
fifty years or such Government servant may,
by notice to the appointing authority,
voluntarily retire at any time after attaining the
age of (forty five years) or after he has
complete qualifying service for twenty years."
28. The provisions contained under sub Clause (C) of
Rule 56 (C) of Financial Handbook Volume 2, Part II to
IV, it starts with a non-obstinate clause, which gave
ample of powers to Appointing Authority, who may, at
any point of time, by notice to the government servant or
even without assigning any notice and reasons, may retire
a person, subject to the condition he had attained the age
of 50 years. In order to deal with the impact of sub Clause
(C) of the Rule 56 (C) of Financial Handbook Volume 2,
Part II to IV, and particularly, in the context of the
arguments, as extended by the learned counsel for the
petitioner about the applicability of mind, adherence of
the principles of natural justice and the effect of grant of
service benefits during continuance of services, prior to
passing of the order of compulsory retirement, certain
facts are required to be inferred which is enumerated
herein below in the following paragraphs.
29. Primarily, the learned counsels for the petitioners of
both the writ petitions, had harped upon the fact of
challenging the impugned action on the ground that the
impugned order is bad for the reason being that.
Firstly, it is in violation of the principle of natural justice
and hence it would be violative of Article 311(2) of the
Constitution of India.
Secondly, it has been argued that since the impugned
order is having an effect of deprivation of a civil right of
the petitioner of prematurely retiring them from their
services under Rule 56 (C) of the Financial Handbook
Volume 2, Part II to IV, it will have civil consequences
hence, principles of natural justice was required to be
adhered to.
Thirdly, the challenge was also based upon that the
report of the screening committee, the constitution of
which was questioned by the petitioner was itself
defective, the same cannot be taken, as to be the sound
basis for passing the impugned order of compulsory
retirement.
Fourthly, also because of the fact that during the
intervening period from the date of induction into the
services and the date of the impugned action of
compulsory retirement, since the petitioners were the
recipient of escalated financial benefit, promotional pay
scales and promotion itself, it has been argued, that it
would be inferred that the petitioners' service records
were unblemished and they cannot not be classified as to
be 'deadwood', for the purpose of retrieving their
inefficiency in discharging of their official duties for the
purposes of passing the order of compulsory retirement
and that too in violation of the principles of natural
justice.
30. This Court, in the analysis which has been made in
the above paragraphs, had widely extracted four grounds
on the basis of which the challenge has been given by the
petitioners to the impugned order of compulsory
retirement. In order to answer the aforesaid arguments
and the observations, it becomes necessary to deal with
sub clause (e) of Rule 56 (1) of Financial Handbook
Volume 2, Part II to IV and particularly the intention of
the explanation given therein to sub clause (e) of sub Rule
(1) of Rule 56 of the Financial Handbook Volume 2, Part
II to IV. Rule (e) is extracted hereunder:-
"(e) A retiring pension shall be payable and other
retirement benefits, if any, shall be available in
accordance with and subject to the provisions of the
relevant rules to every Government servant who
retires or is required or allowed to retire under this
rule.
[Provided that where a Government servant who
voluntarily retires or is allowed voluntarily to retire
under this rule the appointing authority may allow
him, for the purposes of pension and gratuity, if any,
the benefit of additional service of five years or of
such period as would have served if he had
continued till the ordinary date of his
superannuation, whichever be less]:
Explanation- (1) The decision of the appointing
authority under Clause (c) to require the
Government servant to retire as specified therein
shall be taken if it appears to the said authority to be
in the public interest, but nothing herein contained
shall be construed to require any recital, in the order
of such decision having been taken in the public
interest."
31. In fact, if the language of sub clause (e) of sub Rule
(1) of Rule 56 of Financial Handbook Volume 2, Part II
to IV is taken into consideration, it rather makes it amply
clear that a person who is retiring under Rule 56, will not
be prejudiced at all; because all his retiral benefits which
would be accordingly payable to him in accordance with
law would be subject to the provisions of rules as
generally made applicable to the Government servant,
who would have otherwise retired under the normal set of
circumstances without there being an order of
compulsory retirement. The aforesaid position is further
clarified by the explanation to the sub Rule (e) of Rule
56(1), which says that the decision of the Appointing
Authority, under clause (c), it simplicitor requires that the
government servant is to retire, as specified therein, shall
be taken if it appears to be in the public interest, but
notwithstanding anything contained, which should be
construed that the appointing authority is required to give
a detailed reason or a logic for arriving at a decision for
passing an order.
32. In that eventuality, if the implications, the argument
extended by the learned counsel for the petitioner about
the adherence of principle of natural justice or with
regards to an application of mind and the fact that during
the intervening period, there had been other certain
benefits assigned to the petitioner, will not at all ever
cloud the powers given under sub Clause (e) of Rule
56(1), which is wide enough to encompass within it the
exclusive power of the Appointing Authority, to pass an
order of compulsory retirement in order to attain the
wider objectives and that too, as already observed above
once the order of compulsory retirement, is outside the
ambit of the description of penalties, provided under the
Service Rules of 1976, no opportunity of hearing is a fact
required because compulsory retirement is not a
punishment and it does not attaches any stigma nor has
any panel consequences or an effect on retirement
benefit.
33. As the order of compulsory retirement takes its birth
from the doctrine of pleasure, as envisaged by Article 310
of the Constitution of India, it casts an absolute
discretion, under the theory of public interest and there
are very limited grounds for interference, as against the
order of compulsory retirement and the only scope is, that
the order has been passed by a non application of mind,
which is not available in the instant case because the
Appointing Authority, prior to taking a decision under the
Government Orders, referred to in the writ petition, had
rather constituted a screening committee of two higher
judicial officers, who had scrutinized the service records
and credentials of the petitioners and it is on the basis of
the report of the Screening Committee, the decision of
compulsory retirement has been taken, which itself
speaks about, that the discretion of the compulsory
retirement has been rendered by the Appointing Authority
after a concrete and a decisive application of mind and
the correctness of the decision-making process by the
competent authority, cannot be subjected to a judicial
review before the Court to scrutinize as to the parameters,
which had been adopted by the disciplinary authority
before passing an order of compulsory retirement. And
that is why, in the matters of Ashok Kumar Aggarwal
Vs. Union of India and Another as reported in 2021
SCC online Delhi 4453, the Division Bench of the Delhi
High Court, has laid down that the High Court cannot
examine the mode and manner of taking the decision for
compulsory retirement, as if it was exercising an
appellate jurisdiction.
34. In fact, if the old precedents of the judgement of
Union of India v. J.N. Sinha, as reported in 1970 (2)
SCC 458, is taken into consideration, the issue there too
was that the case where the Government of India, has
passed an order of compulsory retirement of a central
government employee, where, an issue was raised, that
the order of compulsory retirement suffers from the vices
of lack of adherence of the principles of natural justice.
The said judgement has answered this question, holding
thereof that the principles of natural justice is a concept
which is not embodied in the rules, nor can they be
elevated to a position to be kept in parlance to the
fundamental rights and the Courts are not supposed to
ignore the mandate of the legislature or the statutory
authority, vesting the powers with the appointing
authority to compulsorily retire an employee, who
satisfies the preconditions of Rule 56 or the stipulations,
provided under the government order where the exercise
of powers conferred should be in express words of
provisions of law, purpose for which, the powers have
been statutorily conferred and the effort which has been
apparently made prior to the exercise of powers of
passing the order of compulsory retirement in the instant
case.
35. If the parallel provision, as applicable on the central
government employees, contained under Rule 56(j),
found reference in the matters of Col. J.N. Sinha (Supra),
in its express words, it states that the appropriate
authority has its absolute right to retire a government
servant if there is a mere 'opinion', itself, that it is in
'public interest'. Hence, it does not require an elaborate
proceedings to be held for hearing an employee; as the
compulsory retirement since it involves no civil
consequences and government servant does not looses
any of his rights; which he could have otherwise he
would have derived had he normally retired. The
parameters as discussed in the above paragraph, which
was argued by the learned counsel for the petitioner, no
more comes for consideration; while passing the order of
compulsory retirement.
36. Akin principle has been laid down in the matters
where an employee who was working in the subordinate
Courts, was compulsorily retired on the recommendations
of the High Court of Jharkhand and the matters as
reported in 2010 (10) SCC 693, Pyare Mohan Lal Vs.
State of Jharkhand, it has been observed that where
even a compulsory retirement order has been passed on
the recommendation of the High Court of the Jharkhand,
in relation to the staff of subordinate Courts, principle of
natural justice, has no place in the process of passing of
the orders of compulsory retirement, but however, if the
principle of natural justice has been held to be having no
placed, that doesn't mean that the judicial scrutiny is
excluded altogether by the High Courts, but here, in the
instant case, and for the reasons, which has been dealt
with by this Court, this Court is of the view, that under
the circumstances of the instant case where the decision-
making process was resorted to, as a consequence of the
decision taken by the Screening Committee, that itself
would suffice the purpose to justify the order of
compulsory retirement under Rule 56 of the Financial
Handbook Volume 2, Part II to IV.
37. In order to meet out the arguments as extended by
the learned counsel for the petitioners, from the
perspective that the order of compulsory retirement, a
reference to Uttar Pradesh Subordinate Courts Staff
(Punishment and Appeals) Rules, 1976, which has been
made applicable to the State of Uttarakhand, becomes
relevant to be considered. The provision of Rule 2 of the
Rules of 1976 defines "subordinate Courts", which
includes of civil or the criminal Courts under the direct
administrative control of the High Court. Rule 4 defines
the nature of punishment which has been made applicable
to the Ministerial staff and Class-IV employees. Since in
the classification of the punishments provided under Rule
4 of the Rules 1976, the order of compulsory retirement is
not inclusive in the definition of punishment, it cannot be
said that it would at all be construed to be taken as to be a
stigmatic order, where the adherence of principles of
natural justice or the implications of Article 311(2) of the
Constitution of India, could be attracted, as it does not
have any adverse effect, on the retiral benefits, which
would be admissible to an employee, its neither stigmatic
or a punitive order.
38. Further, if Rule 4 is analysed in the light of the
perspective of Rule 7 of the Rules 1976, when the order
itself has not been made appealable under the Rules, it
will not be treated as to be an order of imposition of a
penalty, which could be said to be attracting a stigma, in
the services of an employee and since it is not a penalty
under Rule 4, and is not appealable under Rule 7, the
adherence of principles natural justice would not be the
relevant factor, to be considered. Because it does not
carry any panel consequences. This is what has been
postulated in the judgement of Ashok Kumar Aggarwal
(supra), wherein the Division Bench of the Delhi High
Court, while deriving the implications of 'doctrine of
pleasure', as provided under Article 310 of the
Constitution of India, it took the right of employer, an
absolute discretion to the act of passing of an order of
compulsory retirement, an absolute discretion and in the
public interest, but only principles, which had been left or
the scope which had been left to be interfered is
apparently only when the order on the face of it does or
does not reflect, that the appointing authority passing the
order had not applied its mind or the order smacks malice
on the face of record.
39. This Court, after having heard the learned counsels
for the parties at length, and after scrutinising the
findings, which had been recorded in the report of the
Screening Committee, dated 13th December 2019, as
well as, the observations, which has been made in the
impugned order dated 14th January 2020, is of the
opinion, that there was a mechanism of scrutinisation of
the past 10 years service records, after identifying the
employees, who have crossed the age of 50 years, as per
the Government Orders, for the purposes of considering
their cases under Rule 56 (C) of the Financial Handbook
Volume 2, Part II to IV was meticulously resorted too.
40. Since in the instant case, the application of mind; the
exercise of scrutinisation of service records; and in the
absence of there being any malafide, which has been
pleaded by the petitioners in their writ petitions, the
impugned order, as per the judgement of the Division
Bench of Delhi High Court, doesn't suffer from any vices
calling for to be interfered with under Article 226 of the
Constitution of India.
41. The Division Bench of Delhi High Court, in Ashok
Kumar Aggarwal's case (supra), had further provided that
if the authority, competent to pass an order bonafidely
wants to have an opinion prior to passing the order of
compulsory retirement by invoking the powers contained
under Rule 56 (C) of the Financial Handbook Volume 2,
Part II to IV, the correctness of the opinion drawn by the
appointing authority, based on the material which had
been placed before it, cannot be put to challenge before
the Courts and it is because of this reason, that the
protection under Article 311 of the Constitution of India,
has not been made applicable because opportunity of
hearing is to be given only in those cases, where the
impugned order under challenge, has a penal
consequences and in stigmatic and in such a situation, the
principles of natural justice, has got no place, where the
orders of compulsory requirement are passed and that too,
it cannot be scrutinized by the High Court as if the High
Court was sitting as the Court of Appeal, over the
decision taken by the competent authority. Relevant
paragraphs of the said judgment are extracted hereunder:-
"49. The learned counsel has taken this Court in detail to the
counter affidavit filed by the Respondents in O.A.1835/2020 and
has explained in detail, the scope of compulsory retirement under
Rule 56(j) of Fundamental Rules on the basis of the decision
rendered by Hon'ble Supreme Court in Baikuntha Nath
Das v. Chief Distt. Medical Officer, Baripada, (1992) 2 SCC
299 : AIR 1992 SC 1020.
50. It is submitted by learned counsel appearing on behalf of
the Respondents that compulsory retirement involves civil
consequences. The rule merely points out the "Doctrine of
Pleasure" embodied in Article 310 of the Constitution of India.
59. It is submitted by the counsel for the Respondents that order
of compulsory retirement under Rule 56(j) of Fundamental Rules
is neither stigmatic nor does it entail any civil consequences and,
therefore, compulsory retirement does not prejudice a Government
servant nor there is violation of the fundamental right of the
Petitioner.
70. Rule 56(j) of Fundamental Rules is reproduced hereunder
for ready reference:--
"Notwithstanding anything contained in this rule, the
appropriate authority shall, if it is of the opinion that it is in
the public interest to do so, have the absolute right to
retire any government servant by giving him notice of not less
than three months in writing or three months pay and allowance
in lieu of such notice.--
(i) If he is in Class I or Class II service or post (and had
entered the Government service before attaining the age
of thirty-five years after he has attained the age of fifty
years);
(ii) In any other case after he has attained the age of 55
years.
Provided that nothing in this clause shall apply to a
Government servant referred to in Clause (c) who entered
Government service on or before 23rd July, 1966 and to
Government servant referred to in Clause (f)"
(emphasis supplied)
74. None of the aforesaid grounds raised by the learned Senior
Counsel for the Petitioner is accepted by this Court. It ought to be
kept in mind that order of compulsory retirement under Rule 56(j)
of Fundamental Rules is absolutely a separate, distinct exercise
under Rule 56(j) of Fundamental Rules and an independent
decision has been arrived at by the Union of India through the
recommendation of the Review Committee.
75. An order of compulsory retirement is not a punishment nor
it attaches any stigma to an employee - Petitioner. Subjective
satisfaction of the Government in public interest, arrived at after
considering the entire service record of the Petitioner, where
principal of natural justice is not required to be observed while
passing an order of compulsory retirement because order of
compulsory retirement does not amount to punishment.
76. It has been held by Hon'ble the Supreme Court in Baikuntha
Nath Das v. Chief District Medical Officer reported in (1992) 2
SCC 299, in Para-12,33,34 and 36 as under:--
"12. As far back as 1970, a Division Bench of this Court
comprising J.C. Shah and K.S. Hegde, JJ. held in Union of
India v. J.N. Sinha [(1970) 2 SCC 458 : (1971) 1 SCR 791] that
an order of compulsory retirement made under F.R. 56(j)
does not involve any civil consequences, that the employee
retired thereunder does not lose any of the rights acquired by
him before retirement and that the said rule is not
intended for taking any penal action against the government
servant. It was pointed out that the said rule embodies one of
the facts of the pleasure doctrine embodied in Article 310 of
the Constitution and that the rule holds the balance between the
rights of the individual government servant and the interest of
the public. The rule is intended, it was explained, to enable the
government to energise its machinery and to make it efficient
by compulsorily retiring those who in its opinion should not
be there in public interest. It was also held that rules of
natural justice are not attracted in such a case. If the
appropriate authority forms the requisite opinion bona fide, it
was held, its opinion cannot be challenged before the courts
though it is open to an aggrieved party to contend that the
requisite opinion has not been formed or that it is based on
collateral grounds or that it is an arbitrary decision. It is
significant to notice that this decision was rendered after the
decisions of this Court in State of Orissa v. Dr Binapani
Dei [(1967) 2 SCR 625 : AIR 1967 SC 1269 : (1967) 2 LLJ
266] and A.K. Kraipak v. Union of India [(1969) 2 SCC
262 : AIR 1970 SC 150]. Indeed, the said decisions were relied
upon to contend that even in such a case the principles of
natural justice required an opportunity to be given to the
government servant to show cause against the proposed action.
The contention was not accepted as stated above. The principles
enunciated in the decision have been accepted and followed in
many a later decision. There has never been a dissent -- not
until 1987.
xxx xxx xxx
33. At this stage, we think it appropriate to append a note of
clarification. What is normally required to be communicated is
adverse remarks -- not every remark, comment or observation
made in the confidential rolls. There may be any number of
remarks, observations and comments, which do not constitute
adverse remarks, but are yet relevant for the purpose of F.R.
56(j) or a rule corresponding to it. The object and purposes for
which this power is to be exercised are well stated in J.N. Sinha
[(1970) 2 SCC 458 : (1971) 1 SCR 791] and other decisions
referred supra.
34. The following principles emerge from the above
discussion:
(i) An order of compulsory retirement is not a punishment.
It implies no stigma nor any suggestion of
misbehaviour.
(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.
xxx xxx xxx
36. So far as the appeals before us are concerned, the High
Court which has looked into the relevant record and
confidential records has opined that the order of compulsory
retirement was based not merely upon the said adverse remarks
but other material as well. Secondly, it has also found that the
material placed before them does not justify the conclusion that
the said remarks were not recorded duly or properly. In the
circumstances, it cannot be said that the order of compulsory
retirement suffers from mala fides or that it is based on no
evidence or that it is arbitrary."
(emphasis supplied)
77. Compulsory retirement involves no civil consequences. The
Government servant does not loose any of the rights acquired by
him before retirement while a minimum service is granted to the
Government Servant, the Government is given power to energize
its machinery and make more efficient by compulsory retiring
those who in its opinion should not continue in the service of the
Government in the interest of public.
78. It has been held by Hon'ble the Supreme Court in Union of
India v. Col. J.N. Sinha, (1970) 2 SCC 458 in para-8, 9 and 10 as
under:--
"8. Fundamental Rule 56(i) in terms does not require that
any opportunity should be given to the concerned
government servant to show cause against his compulsory
retirement. A government servant serving under the Union of
India holds his office at the pleasure of the President as
provided in Article 310 of the Constitution. But this "pleasure"
doctrine is subject to the rules or law made under Article 309 as
well as to the conditions prescribed under Article 311. Rules of
natural justice are not embodied rules nor can they be elevated
to the position of fundamental rights. As observed by this Court
in A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR
1970 SC 150] "the aim of rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law
validly made. In other words they do not supplant the law but
supplement it". It is true that if a statutory provision can be read
consistently with the principles of natural justice, the courts
should do so because it must be presumed that the Legislatures
and the statutory authorities intend to act in accordance with the
principles of natural justice. But if on the other hand a statutory
provision either specifically or by necessary implication
excludes the application of any or all the principles of natural
justice then the court cannot ignore the mandate of the
Legislature or the statutory authority and read into the
concerned provision the principles of natural justice. Whether
the exercise of a power conferred should be made in accordance
with any of the principles of natural justice or not depends upon
the express words of the provision conferring the power, the
nature of the power conferred, the purpose for which it is
conferred and the effect of the exercise of that power.
9. Now coming to the express words of Fundamental Rule
56(j) it says that the appropriate authority has the absolute
right to retire a government servant if it is of the opinion
that it is in the public interest to do so. The right conferred on
the appropriate authority is an absolute one. That power can be
exercised subject to the conditions mentioned in the rule, one of
which is that the concerned authority must be of the opinion
that it is in public interest to do so. 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 farmed or the
decision is based on collateral grounds or that it is an arbitrary
decision. The 1st respondent challenged the opinion formed by
the Government on the ground of mala fide. But that ground
has failed. The High Court did not accept that plea. The same
was not pressed before us. The impugned order was not
attacked on the ground that the required opinion was not
formed or that the opinion formed was an arbitrary one. One of
the conditions of the 1st respondent's service is that the
Government can choose to retire him any time after he
completes fifty years if it thinks that it is in public interest to do
so. Because of his compulsory retirement he does not lose
any of the rights acquired by him before retirement.
Compulsory retirement involves no civil consequences. The
aforementioned Rule 56(j) is not intended for taking any
penal action against the government servants. That rule
merely embodies one of the facets of the pleasure
doctrine embodied in Article 310 of the Constitution. Various
considerations may weigh with the appropriate authority while
exercising the power conferred under the rule. In some
cases, the Government may feel that a particular post may be
more usefully held in public interest by an officer more
competent than the one who is holding. It may be that the
officer who is holding the post is not inefficient but the
appropriate authority may prefer to have a more efficient
officer. It may further be that in certain key posts public
interest may require that a person of undoubted ability and
integrity should be there. There is no denying the fact that in
all organizations and more so in government organizations,
there is good deal of dead wood. It is, in public interest to
chop off the same. Fundamental Rule 56(j) holds the balance
between the rights of the individual government servant and the
interests of the public. While a minimum service is
guaranteed to the government servant, the Government
is given power to energise its machinery and make it more
efficient by compulsorily retiring those who in its opinion
should not be there in public interest.
10. It is true that a compulsory retirement is bound to have
some adverse effect on the government servant who is
compulsorily retired but then as the rule provides that such
retirements can be made only after the officer attains the
prescribed age. Further, a compulsorily retired government
servant does not lose any of the benefits earned by him till the
date of his retirement. Three months' notice is provided so as to
enable him to find out other suitable employment."
(emphasis supplied)
81. The fundamental source of compulsorily retiring an
employee of the Government is derived from "Doctrine of
Pleasure" which springs from Article 310 of the Constitution of
India. It has been held by Hon'ble the Supreme Court in Nisha
Priya Bhatia v. UOI (Supra) in paragraphs, 33,40,42,43 as
under:--
"33. Further, it is pertinent to note that the grounds referred
to in Rule 135 nowhere contemplate it as a consequence of any
fault or wrongful action on the part of the officer and unlike
penal actions, do not stigmatise the outgoing officer or involve
loss of benefits already earned by him and there is no element
of punishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce
this view as the same provide for appropriate benefits such as
pension, gratuity, lump sum amount, etc. for the public servant
who has been subjected to compulsory retirement. Thus, the
employee is not faced with any loss of benefits already earned.
We say so because the examination of the characteristics of
such a rule is not focussed around the motive or underlying
intent behind its enactment, rather, it lies in the consequence
and effect of the operation of such a rule on the outgoing
employee. The rule does not result into a deprivation of the
retired employee of any benefit whatsoever in lieu of such
order of compulsory retirement and thus, attracts no stigma
or any civil consequence to the retired employee for his/her
future. The invocation of this Rule, therefore, falls in sync
with the second proposition in Shyam Lal [State of
U.P. v. Shyam Lal Sharma, (1971) 2 SCC 514] which looks
down upon any loss of profits in a non-stigmatic order of
compulsory retirement. Succinctly put, a compulsory
retirement without anything more does not attract Article
311(2). We may usefully refer to Dalip Singh v. State of
Punjab [Dalip Singh v. State of Punjab, AIR 1960 SC 1305]
and Union of India v. Dulal Dutt [Union of India v. Dulal
Dutt, (1993) 2 SCC 179 : 1993 SCC (L&S) 406] to bring home
the stated position of law.
xxx xxx xxx
40. We also deem it necessary, at this juncture, to note that
the mere fact of non-prescription of inquiry under Rule 135
of the 1975 Rules, before making the order of compulsory
retirement, does not go against the constitutionality of the
Rule. Additionally, the rule does not prohibit any inquiry and is
in general line with the orders of compulsory retirement
wherein the right of outgoing employee to participate in the
process of formation of such decision is not envisaged in law,
as the underlying basis of such action is the larger public
interest and security of the Organisation; and not any culpable
conduct of the employee. Moreover, Rule 135 incorporates a
language that is self-guiding in nature. The usage of words
"exposure" and "unemployability for reasons of security" are
not insignificant, rather, they act as quintessential stimulants for
the competent authority in passing such order. The mandatory
determination of what amounts to an exposure or what renders
an employee unemployable due to reasons of security under
Rule 135, is both a precondition and safeguard, and
incorporates within its fold the subjective satisfaction of the
competent authority in that regard. In order to reach its own
satisfaction, the authority is free to seek information from its
own sources. Thus, in cases when the ingredients of Rule 135
stand satisfied in light of the prevalent circumstances, the need
for giving opportunity to the officer concerned by way of an
inquiry is done away with because the underlying purpose of
such inquiry is not the satisfaction of the principles of natural
justice or of the officer concerned, rather, it is to enable the
competent authority of the Organisation to satisfy itself in a
subjective manner as regards the fitness of the case to invoke
the rule. Therefore, the procedure underlying Rule 135 cannot
be shackled by the rigidity of the principles of natural justice in
larger public interest in reference to the structure of the
Organisation in question, being a special rule dealing with
specified cases.
xxx xxx xxx
42. A conjoint reading of Articles 309 and 311 reveals that
Article 311 is confined to the cases wherein an inquiry has been
commenced against an employee and an action of penal nature
is sought to be taken. Whereas, Article 309 covers the broad
spectrum of conditions of service and holds a wider ground as
compared to Article 311. That would also include conditions of
service beyond mere dismissal, removal or reduction in rank. It
holds merit to state that this wide ground contemplated under
Article 309 also takes in its sweep the conditions regarding
termination of service including compulsory retirement.
In Pradyat Kumar Bose v. Chief Justice of Calcutta High
Court [Pradyat Kumar Bose v. Chief Justice of Calcutta High
Court, AIR 1956 SC 285], this Court touched upon the ambit
and scope of Article 309 of the Constitution and expounded that
the expression "conditions of service" takes within its sweep
the cases of dismissal or removal from service.
43. We further note that generally it is correct to say that the
rules governing conditions of service, framed under Article
309, are subject to other provisions of the Constitution,
including Article 311. The opening words of Article 309 --
"Subject to the provisions of this Constitution" -- point
towards the same analogy. However, this subjection clause
shall not operate upon the rules governing compulsory
retirement. For, the legal concept of compulsory retirement, as
discussed above, is a non-penal measure of the Government and
steers clear from the operation of Article 311, unless it is a case
of removal or dismissal clothed as compulsory retirement. Had
there been a rule providing for removal, dismissal or reduction
in rank, it would have been controlled by the safeguards under
Article 311. It has also been observed in State of U.P. v. Babu
Ram Upadhya [State of U.P. v. Babu Ram Upadhya, AIR 1961
SC 751 : (1961) 1 Cri LJ 773] that the validity of a rule shall be
hit by Article 311 only if it seeks to affect the protection offered
by Article 311, and not otherwise as in the present case."
(emphasis supplied)
96. It has been held by Hon'ble Supreme Court in Ramchandra
Das v. State of Orissa, (1996) 5 SCC 331 in paragraph-7 as
under:--
"7. It is contended for the respondent that adverse entries for
the two years referred to earlier and pending departmental
proceedings would not be sufficient to compulsorily retire the
government servant on the 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 selfsame
material after promotion may not be taken into consideration
only to deny him further promotion, if any. But that material
undoubtedly would be available to the Government to consider
the overall expediency or necessity to continue the government
servant in service after he attained the required length of service
or qualified period of service for pension. It is also made clear
that in this case adverse entries were made only after promotion
and not earlier to promotion. Compulsory retirement is not a
punishment. He is entitled to all the pensionary benefits."
(emphasis supplied)
101. It has been held by Hon'ble Supreme Court in State of
Orissa v. Ram Chand Das (Supra) in paragraph 3 as under:--
"3. This appeal by special leave arises from the judgment
and order passed by the Orissa Administrative Tribunal in OA
No. 340 on 1987 on 18-7-1992. The respondent while working
as Assistant Conservator of Forests was compulsorily retired
from service by proceedings dated 1-8-1983 which came to be
challenged by the respondent in the above proceedings. The
Tribunal allowed the application on three grounds : (i) the
respondent was allowed to cross the efficiency bar; (ii) since he
was promoted, after the adverse remarks were made, the
records were wiped out; and (iii) the entire record and overall
consideration thereof was not done and, therefore, the exercise
of the power of compulsory retirement under Rule 71(a) was
not valid in law. The question is whether the view taken by the
Tribunal is correct in law? It is needless to reiterate that the
settled legal position is that the Government is empowered
and would be entitled to compulsorily retire a government
servant in public interest with a view to improve efficiency
of the administration or to weed out the people of doubtful
integrity or are corrupt 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 service. But
the Government, before taking such decision to retire a
government employee compulsorily from service, has to
consider the entire record of the government servant including
the latest reports."
(emphasis supplied)
112. The Review Committee has formed bonafide opinion
under Rule 56(j) of Fundamental Rules without any malafides,
arbitrariness and perversity. Hence, the correctness of the decision
which is a subjective satisfaction of the Review Committee, on
merits, cannot be challenged before this court. It has been held by
Hon'ble Supreme Court in Nisha Priya Bhatia v. UOI (Supra) in
paragraphs 54 and 71, as under
"54. Given the factual matrix of the present case, we deem it
proper to carve out some important events from the
aforementioned chain. The aforementioned sequence of events
reveals the chain of internal communications in the aftermath of
which the order dated 18-12-2009 was eventually passed. The
secret note sent by the Secretary (R) to PMO, dated 11-5-2009,
opinion of the then Solicitor General of India by Letter dated
21-7-2009, opinion of the Department of Legal Affairs, Union
Ministry of Law and Justice and the PMO note in which the
invocation of Rule 135 was determined as the only viable
option, constitute together a complete chain of inquiry
revealing due application of mind by the respondents into the
question of compulsory retirement. It is settled law that the
scope of judicial review is very limited in cases of
compulsory retirement and is permissible on the limited
grounds such as non-application of mind or mala fides.
Regard can be had to Pyare Mohan Lal v. State of
Jharkhand [Pyare Mohan Lal v. State of Jharkhand, (2010) 10
SCC 693 : (2011) 1 SCC (L&S) 550]. The abovequoted set of
events are so eloquent that it leaves us with no other conclusion
but to hold that the action of compulsory retirement was the just
option. Assuming that some other option was also possible, it
would not follow that the decision of the competent authority to
compulsorily retire the appellant was driven by extraneous,
malicious, perverse, unreasonable or arbitrary considerations.
The prerequisite of due application of mind seems to be
fulfilled as the decision has been reached in the aftermath of a
series of discussions, exchanges and consultations between the
Organisation and the PMO over the course of 15 months from
22-9-2008 to 18-12-2009.
xxx xxx xxx
71. As regards the grant of pension to the appellant, the
appellant shall be entitled to all the benefits under sub-rules (2)
to (4) of Rule 135 in their true letter and spirit. The impugned
judgment [Union of India v. Nisha Priya Bhatia, 2019 SCC
OnLine Del 6473] has directed the respondents to secure
various benefits to the appellant, including the benefit of
promotion and fixation of date of pension as per the date of
notional superannuation in 2023. That direction has not been
challenged before us by the respondents. The pension of an
employee retired under Rule 135 is to be determined in
accordance with the date of notional superannuation and not in
accordance with the date of actual retirement. This, in our view,
reflects the beneficial, balancing and protective outlook of the
Rule as it seeks to deal with the competing considerations of
public interest including security (of the Organisation or the
State) and individual interest of the outgoing employee. Thus,
we direct the respondents to abide by the stipulations contained
in sub-rules (2) to (4), and in particular the benefit extended to
the appellant by the High Court referred to above, in their true
letter and spirit and in right earnest, if already not done."
122. It has been held by Hon'ble Supreme Court In State of
Orissa v. Ram Chandra Das, (1996) 5 SCC 331 in para-7 as
under:--
"7. ....... ......... 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 selfsame material after
promotion may not be taken into consideration only to deny
him further promotion, if any. But that material undoubtedly
would be available to the Government to consider the overall
expediency or necessity to continue the government servant in
service after he attained the required length of service or
qualified period of service for pension. It is also made clear that
in this case adverse entries were made only after promotion and
not earlier to promotion. Compulsory retirement is not a
punishment. He is entitled to all the pensionary benefits."
(emphasis supplied)
42. A similar view, as referred above taken by the
Division Bench has been elaborately laid down in the
judgement of Baikuntha Nath Das and Another Vs.
Chief District Medical Oficer, Baripada and Another,
as reported in 1992 (2) SCC 299. The issue therein too,
related to the order of compulsory retirement pertaining
to an employee, who was in the services of government
of Orissa, but, wider principles in this judgment too,
which has been referred by the Delhi High Court, in
Ashok Kumar Aggarwal's case (supra), had almost
reiterating the similar principles, that natural justice has
no place in the context of an order being passed for
compulsory retirement, since not being a stigmatic order.
The logic, which has been assigned therein in the
judgment of Baikuntha Nath Das's case (supra), is that
since the nature of function is not a quasi judicial in
nature, because the action has to be taken on the
subjective satisfaction of the competent authority, there is
no relevance of applying the principle of audi alteram
partem, for attracting the rules of principles of natural
justice. Since it is not a case of either of the petitioners in
the present two writ petitions about arbitrary exercise of
powers with malafides based on no evidence, the order
cannot be faulted of.
43. In yet another judgement, as reported in 1970 (2)
SCC 458, Union of India Vs. Col. J.N. Sinha and
Another. It was a case where the petitioner therein, who
was an employee of the Government of India, was retired
under the Rule 56 (j) of the Fundamental Rules, as
applicable to the Central Government employees, which
was dealing with an issue, almost akin to the present case,
where lack of opportunity or to show cause the order of
compulsory retirement could be faulted. In the said
judgement, it has been embodied that the principles of
natural justice cannot be elevated to the position of
fundamental rights and also the Court cannot ignore the
mandate of the legislature of the statutory authorities
being vested with the powers to pass an order of
compulsory retirement. Once it is exercised under the
express words of the provisions, the purpose for which,
the power has been conferred and the efforts to arrive to a
logical conclusion has been adhered to.
44. In fact, it is an absolute right and a prerogative,
which has been vested with an employer of a Government
servant, who has to draw an opinion based on the material
placed before it, without being malafidely oriented and
when the opinion is drawn, that the order of compulsory
retirement would be in a public interest and in the interest
of an organisation, the opportunity will have no place
because the order doesn't have any civil consequences as
such. The reasons behind the said inference, as drawn by
the Hon'ble Apex Court, in the judgment of Col. J.N.
Sinha (supra) is that the basic intention of the Rules
governing the field of compulsory retirement, the
legislative intent is to maintain a balance between the
right of the individual government servant, and its
comparative scrutiny to the interest of the public at large,
and if the interest of public at large has a predominance,
over and above the individual interest of the government
servant or rights the public interest would prevail in order
to weed out the deadwood, which are of no relevance and
used in an organisation.
45. Similar view has been taken by the Hon'ble Apex
Court, in a judgment reported in 2010 (10) SCC 693,
Pyare Mohan Lal Vs. State of Jharkhand and Others.
Since it was also dealing with the aspects of principles of
natural justice in relation to the orders which were passed
for compulsory retirement, it is not being elaborated by
this Court, in order to avoid the repetition of the
principles.
46. The Hon'ble Apex Court, in its judgment, as
reported in 2013 (3) SCC 514, Rajesh Gupta Vs. State
of Jammu and Kashmir and others, in its observation,
which has been made in para 24 and 32, which are
extracted hereunder, had laid down, that the conclusion of
a Screening Committee, even if does not correlate to the
assessment and integrity of the appellant's work, then too,
the object of compulsory retirement and the principles,
which are governing there, was only to be interfered
when it was passed in an arbitrary exercise of powers of
giving a premature retirement and hence the principles
laid therein, was based upon the assessment of the
integrity of the petitioner, who had unblemished service
records and the action taken against him, was contrary to
the service records and the report submitted by the higher
level committee therein.
"24. In Jugal Chandra Saikia (supra), this Court reiterated the
principles in the following words:-
"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 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.
32. Consequently, the appeal is allowed, the impugned order
of the premature retirement of the appellant dated 26th April,
2005 is quashed and set aside. It is brought to our notice that
the appellant has still not reached the age of superannuation. He
is, therefore, directed to be reinstated in service. In view of the
fact that the appellant has not challenged the order of premature
retirement on the ground that the action taken by the
Government was malafide, it would not be appropriate in this
case, to follow the normal rule of grant of full backwages on
reinstatement. We, however, direct that the appellant shall be
paid 30% of the backwages from the date of order of premature
retirement till reinstatement. He shall not be entitled to any
interest on the backwages.
47. In view of the aforesaid, this Court is of the view
that the arguments, as extended by the learned counsel for
the petitioner, is not acceptable by this Court, in view of
the settled principles, for the exercise of powers for
passing of the order of compulsory retirement is not
clouded by and legal flaw of not providing an opportunity
of hearing to the employees, against whom the order is
proposed to be passed and when the order apparently do
not express any malafides or non applicability of mind, it
cannot be ventured into in the exercise of powers under
Article 226 of the Constitution of India. Thus the writ
petitions lack merit and the same are accordingly
dismissed.
(Sharad Kumar Sharma, J.)
29.04.2022
Mahinder/
