Vs. Union of India & Ors  INSC 603 (11 July 1997)
V. MANOHAR, V.N. KHARE
appellant before us, started his service career as a Sub-Auditor in the
erstwhile Holkar Estate, Indore with effect from 5th February, 1943. Subsequently on reorganisation of
states in the year 1956 the appellant continued to serve in the office of
Accountant General, Madhya Pradesh, Gwalior. The appellant while working as Auditor was accorded selection grade.
However, subsequently the appellant was compulsorily retired from service by
notice dated 23rd of August, 1974 issued under Rule 48(b) of C.C.S. Pension
Rules, 1972 hereinafter referred to as the Rules.
appellant challenged the impugned notice compulsorily retiring him from service
by filing a Civil Suit in the Court of Sub-Judge, Gwalior for a declaration
that the order compulsorily retiring him from service is illegal and
inoperative, being arbitrary and mala fide. The Trial Court decreed the suit
and the aforesaid decree was affirmed by the first Lower Appellate Court. The
High Court in the Second Appeal filed at the instance of the respondents set
aside the decree and Judgments of the Trial Court and the First Appellate Court
holding that the order compulsorily retiring the appellant from service did not
suffer from infirmity either on account of arbitrariness or mala fid es. That
is how the plaintiff appellant has come up in appeal before us.
for the appellant reiterated the argument advanced before the Court below characterising
the order compulsorily retiring the appellant from service as arbitrary and mala
fide. It was urged that the service record of the appellant being unblemished,
the impugned order compulsorily retiring the appellant deserves to be held as
arbitrary. The law in regard to the compulsory retirement of the government
servants in terms of the service rule is almost settled by now by number of
decisions of this Court. Repeatedly it has been held that the power to retire
compulsorily a government servant in terms of the service rules is absolute
provided the concerned authority forms an opinion bona fide that it is
necessary to pass order of compulsory retirement in the public interest. This
Court in the case of Baikuntha Das and another v. Chief District Medical
Officer, Baripada and another [1992 (2) S.C.C. 299] after considering the
number of decisions of the apex Court referred the following principles for
testing the validity of order of compulsory retirement.
The following principles emerge from the above discussion:
order of compulsory retirement is not a punishment. It implies no stigma nor
any suggestion of misbehaviour.
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.
Principles of natural justice have no place in the context of an order of
does not mean that judicial scrutiny is excluded altogether.
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.
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.
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
is permissible only on the grounds mentioned in (iii) above. This aspect has
been discussed in paras 30 to 32 above." Applying principles No.3 and 4 to
the present case, it is worthwhile to refer to the entries pertaining to
appellant in his Annual Confidential Report. In the annual confidential report
for the year 1960-61 the appellant has been described as an average worker and
his further promotion was deferred. In the year 1961-62 the appellant was again
graded as poor. About trustworthiness it was remarked that his work requires
supervision as his accuracy is limited. Against column " business habits
" it was remarked that appellant's method of working is not systematic.
During the period 1.4.64 to 26th of December, 1964 against the column
"fitness and further advancement of appellant ", it was remarked -
"question does not arise".
the period 1965-66 and 1966-67 as well the appellant was described as an
average worker. By letter dated 8th of September, 1972 the Senior Deputy
Accountant General, Administration observed that the appellant has not been
reported good and was required to show improvement in his work before he may be
allowed to cross the efficiency bar.
the period beginning from 13.6.1971 to 30.11.1971 the Reviewing Officer
observed in the report that the appellant is not fit for further advancement
and is an average worker.
that by an order dated 4th February, 1970 passed by the Accountant General, the
appellant was subjected to the minor penalty of withholding next increment for
the period of two years with cumulative effect of postponing future increments
which was reduced by the Appellate Authority to withholding of increments
"for two years without cumulative effect". By letter dated 20th of
November, 1973 passed by the Accountant General, the appellant was further
subjected to the penalty of reduction to the lower stage of Rs.550/- for a
period of two years and further the appellant was denied benefit of increment
during the period of subsistence of the penalty.
adverse remarks in the annual confidential report and the minor punishment
inflicted upon the appellant as referred herein before clearly demolishes the
contention that appellant's service record was unblemished. It is not disputed
that the entire service record including (good and bad) entries of the
appellant were placed before the Review Committee and the Review Committee
after considering the aforesaid reports mainly confidential report/character
roll both favourable and adverse recommended the appointing authority for compulsory
retirement of the appellant from service. The adverse materials placed before
the Review Committee and the appointing authority show that the order
compulsorily retiring the appellant from service was based on material on
record and at no stretch of imagination it can be branded as arbitrary.
then contended that the appellant having passed the S.A.S Part II Civil
Examination in the year 1972-73 after complying with the eligibility criteria
laid down in the Regulations 199 and 207, the adverse entries in the character
roll of the appellant lost their sting and for that reason there was no
material on record on basis of which the appointing authority could form an
opinion to compulsorily retire the appellant from service. No doubt the
appellant was sent by the respondents to appear in S.A.S.
in the year 1972-73 after having been found that the appellant complied with
the conditions for appearing in the said examination and further the appellant
passed the S.A.S. Part II examination but merely the facts that the appellant
was sent to appear in the examination and was declared successful in the said
examination are not the end of the matter. In fact passing of the S.A.S.
examination entitles an auditor to be considered for promotion to the higher
post by the Departmental Promotion Committee. In the present case after the
appellant was declared successful in the S.A.S. examination, the Departmental
Promotion Committee after considering the service record of the appellant did
not recommend his case for further promotion. Applying the principle No.4 as
noted in the case of Baikuntha Nath Das (Supra) the appellant having not been
promoted to the higher post the adverse remarks in his character roll remained
intact. Since the appellant was not promoted to the higher post by the
Departmental Promotion Committee it is not correct to contend that the adverse
materials in the annual confidential report of the appellant lost their sting
and those materials could not form the basis of order compulsorily retiring the
appellant from service.
it was urged that the order compulsorily retiring the appellant was a mala fide
order as the same was passed at the instance of Shri Manazure Muastafa Siddiqui,
Accountant General, M.P., who bore grudge against the appellant. This argument
is being noted only to be rejected.
be noticed that the record before us does not show that Shri Manazure Muastafa Siddiqui
was party to the suit.
fact he was not impleaded by name in the suit. Further, the allegations against
Shri Siddiqui were totally vague. No inference of mala fide could be drawn from
absence of full facts and particulars in the plaint in respect of allegation of
malafides the order compulsorily retiring the appellant cannot be held to be mala
the aforesaid reasons the instant appeal has no merit and is accordingly
dismissed. There shall be no order as to costs.