Vs. Union of India & Ors  INSC 67 (1 March 1990)
Rangnath Misra Rangnath Punchhi, M.M. Agrawal, S.C.
1990 AIR 1004 1990 SCR (1) 783 1990 SCC (2) 328 JT 1990 (2) 618 1990 SCALE
Services--Fundamental Rules: Fundamental Rules 56(j)(i) --Compulsory
retirement--Object of rule---Assail- ment of order-Grounds for--Order retiring
appellant in public interest--Validity of.
Writ Petition flied before this Court, the peti- tioner assailed the order of
his compulsory retirement from service made under rule 56(j)(i) of the
petitioner contended that he was efficient, had clear and unblemished record of
service and his character roll entries were excellent, and since no review has
been made six months before he attained the age of 50 or completed thirty years
of service nor he had been retired on the basis of review, he was entitled to
continue upto the normal retirement age of 58.
behalf of the respondents, it was contended that the order of retirement was
made in public interest after review and that the Committee had concluded after
reviewing com- plete record of service and considering the quality of work on
the whole, that the petitioner was not fit to be retained in public interest.
the Writ Petition, this Court,
1.1 Compulsory retirement under rule 56(j)(i) is not a punishment as it does
not take away any of the past benefits. Chopping off the dead wood is one of
the important considerations for invoking rule 56(j)(i) of the Fundamental
aggrieved civil servant can challenge an order of compulsory retirement on the
ground (i) that the requisite opinion has not been formed; or (ii) that the
decision is based on collateral grounds; or (iii) that it is an arbi- trary
decision. If the civil servant is able to establish that the order suffered
from any of these infirmities, the Court has jurisdiction to quash the same.
[786F-G] Union of India v. Col. J.N. Sinha & Anr.,  1 SCR 791,
the instant case, on the basis of the service record, the Committee formed the
requisite opinion that the peti- tioner had ceased to be useful and, therefore,
should be retired prematurely. The petitioner has not placed any satisfactory
material to prove that the decision was based on collateral grounds. Once the
opinion is reached on the basis of materials on record, the order cannot be
treated to be arbitrary. The service record of more than five years shows that
the higher officers under whom the petitioner had worked were different and
different sets of reviewing offi- cers had also made the entries. Therefore,
the reports must be taken to have reflected an appropriate and objective
assessment of the performance of the petitioner. [786H; 787A-B]
JURISDICTION: Writ Petition No. 58 of 1983.
Article 32 of the Constitution of India) R.K. Garg and D.K. Garg for the Petitioner.
and L.K. Gupta for the Respondents.
MISRA, J. In this application under Art. 32 of the Constitution, petitioner
assails the order dated 5th
September, 1975, of
his compulsory retirement from service with effect from 5th of December, 1975,
made under rule 56(j)(i) of the Fundamental Rules. The impugned order ran thus:
the Director of Audit, Defence Services, New Delhi (appropriate authority) is
of the opinion that it is in the public interest to do so, NOW, THEREFORE, in
exercise of the powers con- ferred by clause (j)(i) of rule 56 of the
Fundamental Rules, the Director of Defence Services (appropriate authority)
hereby gives notice to Shri C.D. Ailawadi, Audit Officer, Defence Services that
he, having already attained the age of 50 years on the 22nd November, 1969,
shall retire from service with effect from the forenoon of the 4th of Decem- ber,
1975, or from the date of expiry of three months com- puted from the date of
the service of this notice on him, whichever is later." The petitioner has
pleaded that he was efficient and had risen 785 from the rank of a Clerk to the
post of Audit Officer in which he was confirmed with effect from 3.12. 1968.
Accord- ing to him, he had clear and unblemished record of service.
held independent charge of the senior post of Deputy Director of Audit and had
been paid an additional amount of Rs. 100 per month for the period. He also
alleged that his character roll entries were excellent. According to him, it
was the obligation of the appropriate authority to review the petitioner's case
six months before he attained the age of 50 or completed thirty years of
service. Since no such review had been made or on the basis of review
petitioner had not been retired, he was entitled to continue upto the age of
58, which is the normal age of retirement. According to him, all cases of
premature compulsory retirement made during the emergency were reviewed in
terms of the Govern- ment circular of lOth of August, 1978, but the representa-
tions made by the petitioner for the benefit of review in terms of the said
circular were not heeded to and the peti- tioner was, therefore, obliged to
file the present petition.
return to the rule nisi by the Director of Audit, Defence Services, it has been
contended that the order of retirement was made in public interest after review
of the petitioner's case. It has been stated in the said affidavit:
the case of Shri Ailawadi the Committee after review of his complete record of
service observed that his earlier services were of a very marginal nature and
he earned some adverse reports later. The Committee, therefore, considering the
quality of his work on the whole, concluded that Shri Ailawadi was not fit to
be retained in the public interest.
Appropriate Authority felt that his reports for the last few years were poor, colourless
and indicative of steady deterioration attributed to family problems and to his
state of health. The Appropriate Authority also took into account his latest
report for the year 1974-75 which assessed him as 'barely competent to hold an
officer's post'." The character roll entries have also been placed before
the Court at the time of heating of this writ petition. We have checked the
same and in particular those for five years prior to the date of the impugned
order. In 1969-70, his ability was considered to be average. His thought and
ex- pression were said to be vague and rambling. Deterioration of his physical
health was taken note of and the general assessment was that he was an average
officer. In the fol- lowing year the reviewing 786 authority after treating him
to be an average officer en- dorsed the following direction:
am inclined to think that the entire report may be commu- nicated to him and he
must be told so to exert himself that he earns a more commendable report next
year. ' ' This appears to have been shown to him and his signature had been
taken on 3.8.1971.
the years 1972-73, 1973-74 and 1974-75, he was branded as an average officer.
In the last year it was indicated that his intelligence was of low order and
though he was physically fit, he was not mentally alert. It was also indicated
that he was barely competent to hold an officer's post. In the report for a
part of 1974-75 he was branded as poor and against the column of 'general
assess- ment', it was shown that 'he was not sure of himself. We have extracted
entries from the character roll to meet the petitioner's contention that he had
an excellent record of service.
D.K. Garg, appearing for the petitioner has supple- mented the arguments by a
written note which has also been looked into.
does not challenge the validity of the rule;
does he allege that the order of compulsory retirement is the outcome of mala
aggrieved civil servant can challenge an order of compulsory retirement on any
of the following grounds as settled by several decisions of this Court: (i)
that the requisite opinion has not been formed; or (ii) that the decision is
based on collateral grounds; or (iii) that it is an arbitrary decision. In
Union of India v. Col. J.N. Sinha & Anr.,  1 SCR 791 this Court held
that if the civil servant is able to establish that the order of compulsory
retirement suffered from any of the above infirmities, the Court has
jurisdiction to quash the same. It is not disputed that compulsory retirement
under rule 56(j) is not a punish- ment as it does not take away any of the past
off the dead wood is one of the important consider- ations for invoking rule
56(j) of the Fundamental Rules. 1n the instant case, on the basis of the service
record, the Committee formed the requisite opinion that the petitioner had
ceased to be useful and, therefore, should be retired prematurely. We do not
think petitioner has been able to place 787 any satisfactory material for the
contention that the deci- sion was on collateral grounds. Once the opinion is
reached on the basis of materials on record, the order cannot be treated to be
arbitrary. The service record of more than five years which we have perused
shows that the higher officers under whom the petitioner had worked were
different and different sets of reviewing officers had also made the entries.
Therefore, the reports must be taken to have re- flected a appropriate and
objective assessment of the per- formance of the petitioner.
writ petition must accordingly fail and is, there- fore, dismissed. There shall
be no order as to costs.