State of Uttar Pradesh Vs. Chandra
Mohan Nigam & Ors  INSC 175 (19 September 1977)
SINGH, JASWANT KAILASAM, P.S.
CITATION: 1977 AIR 2411 1978 SCR (1) 521 1977
SCC (4) 345
CITATOR INFO :
D 1980 SC 563 (13,19,24,31) RF 1980 SC2084
(5) R 1981 SC 594 (5)
Service Law-All India Services
(Death-cum-Retirement Benefits) Rules, '1958, R. 16(3)-Instructions by Central
Government regarding procedure, whether binding on Government-Review of
officer's service records at completion of 50 years age-Favourable report of
Review Committee accepted by State and Central Governments-Service records
reviewed by second Review ,Committee an same materials, prior to completion of
54 years age-Compulsory retirement on recommendation of second Review
Committee, whether validRetirement u/r 16(3) vis a vis the constitutional right
under Preventive Detention Act.
Shri Nigam was a member of the Indian
Administrative Service. During his service career, he had some adverse entries
in his character roll. He was suspended in 1964, pending enquiry on account of
certain strictures passed against him by the Election Tribunal, but was
reinstated when the High Court expunged the strictures on appeal. On December
29, 1967, Shri Nigam attained the age of 50 years, and, following the Central
Government's instructions, in October 1969, a Review Committee examined his
service records under R. 16(3) of the All India Services (DCRB) Rules 1958, as
amended in 1969. The Committee's recommendation for Shri Nigam's continuance in
service, was accepted by the State Government, and the Central Government did
not communicate any disagreement. In May 1970, the State Government set up a
second Review Committee u/r. 16(3) which examined Shri Nigarm's service records
on the same materials, and recommended compulsory retirement. The
recommendation was accepted, and an order dated August 22, 1970, was passed,
compulsorily retiring him. Shri Nigam's writ petition was allowed by a Single
Judge of the High Court, and a State appeal was rejected by the Division Bench,
which found. the case to be analogous with the infringement of a constitutional
right under the Preventive Detention Act.
Dismissing the appeal by certificate, the
HELD : (1) Since Rule 16(3) itself does not
contain any guidelines, directions or criteria, the instructions issued by the
Government furnish an essential and salutary procedure for the purpose of
securing uniformity in application of the rule. They are embedded in the
conditions of service, and are binding ,on the Government, and cannot be
violated to the prejudice of the Government servant. [531 A-B] Santram Sharma
v. State of Rajasthan & Anr.  (1) SCR 111 and Union of India v. K. P.
Joseph & Ors.  (2) SCR 752, applied.
(2) Once a Review Committee has considered
the case of an employee, and the Central Government does not decide, on the
report of the committee endorsed by the State Government to take any
prejudicial action against an officer, there is no warrant for a second Review
Committee under the scheme of rule 16(3) read with the instructions, to
reassess his case on the same materials, unless exceptional circumstances
emerge in the mean time or when the next stage for review arrives. [531 C-D]
(3) The principle governing the order of preventive detention with regard to
effective representation against such order, is not applicable in the case of
an order for compulsory retirement which casts no stigma on a Government
servant. The test which has been laid down in the case of preventive detention
is in context of right to individual liberty of a person which is a fundamental
right enshrined in the Constitution while the order of compulsory retirement
522 is passed in respect of a Government servant who has ceasedto have a right,
as such, to continue in Government service under the rulesgoverning his
employment. [528 G-H] State of Orissa v. Bidyabhushan Mahopatra  Supp.(1)
SCR 648, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos.161 of 1974 and 1782 of 1973.
From the Judgment and Decree dated 13-4-1973
of the Allahabad High Court in Special Appeal No. 698 of 1971.
S.N. Kacker, Sol. Gen., O. P. Rana for the
Appellant in CA No161/74 and R-2 in CA No. 1782/73.
S.N. Kacker, Sol. Genl. and Girish Chandra for
the Appellant in CA No. 1782/73.
Yogeshwar Prasad, (Mrs.) S. K. Bagga, Miss
Meera Bali and Miss, Rani Arora for Respondent No. 1 in both the appeals.
The Judgment of the Court was delivered by.
GoswAmI, J. These appeals by certificate are
from the judgment of the Division Bench of the Allahabad High Court centering
round an order of compulsory retirement of a senior officer in the Indian
The first respondent, Chandra Mohan Nigam,
(briefly the respondent) was recruited in the Indian Administrative Service in
Uttar Pradesh Cadre as a, War-service candidate in 1946 and he joined service
on March 23, 1947. For the purpose of seniority, etc. he was allotted to the
In 1949 he was promoted to the senior scale.
He was appointed Commissioner of Faizabad and Gorakhpur Divisions in 1962. On
June 4, 1967, he was, posted as Secretary, Local Self Department in the State
Government. He was appointed Judicial Member of the Board of Revenue in 1969.
He attained the age of 50 years on December
29, 1967. By an order dated August 22, 1970, the President of India, in
consultation with the Government of Uttar Pradesh, in pursuance of the power
conferred by sub-rule (3) of rule 16 of the All India Services
(Death-cum-Retirement Benefits) Rules 1958, passed the impugned order of
compulsory retirement of the respondent in the public interest on the expiry of
three months from the date of service of the order.
The respondent challenged the said order by a
writ application before the Allahabad High Court and the learned single Judge
allowed the same on the grounds of "contravention of the justifiable and
binding rules and because the order was based on consideration of irrelevant
matters and was also vitiated by bias".
Both the Union of India. and the State of
U.P. appealed to the Division Bench of the High Court against the judgment of
the learned single Judge. The High Court by an order dated April 13, 1973,
dismissed both the appeals by a common judgment.. The Division Bench did not
agree with all the reasons given by the learned single Judge and 523 quashed
the impugned order holding that "the decision of the Central Government to
retire Shri Nigam being based on collateral facts was invalid".
The impugned order of compulsory retirement
was based on four grounds. According to the Division Bench the ground relating
to an order of suspension, on account of certain strictures of the Election
Tribunal was the "gravest' of all the four. Since according to the
Division Bench this ground was absolutely non-existent on account of the
strictures having been later on set aside, it was of opinion that the
non-existent ground prevailed with the Central Government to take the decision
for compulsory retirement of the respondent. The Division Bench observed "we
are unable to hold that if the Government had excluded the case of suspension
from consideration, it would nonetheless have reached the same decision,
namely, to take action for' Shri Nigam's premature retirement'. It is
complained before us by the appellants that the Division Bench erroneously
invoked the principle of law laid down by this Court in the matter of
preventive detention which is that if one of several grounds is irrelevant or
non-existent and the said ground is not inconsequential or non-essential, an
order of detention is invalid. Applying the above principle, the Division Bench
quashed the impugned order. The High Court granted certificate to the
appellants for leave to appeal to this Court and that is how these appeals have
come before us.
Before we proceed further a brief reference
to the facts and circumstances may be appropriate.
The respondent during his service career had
the following adverse entries in his character roll :
(1) A warning was administered to him on
December 6, 1953, for taking undue interest in the ejectment of tenants from a
house owned by him at Lucknow.
(2) Another warning was issued to him on AuList
31, 1962, for having acquired a car from the Varanasi Corporation while working
as the Administrator of the Varanasi Municipal Corporation.
(3) He was also once warned for not
observing, proper rules and procedure for utilizing the fund earmarked for
lower income, group housing scheme towards the construction of a market
(4) He, was also placed under suspension in
1964 in connection with some strictures passed on him by the Election Tribunal
in a case relating to the Gorakhpur Parliamentary Constituency elections.
With regard to the fourth entry, it appears
that although Shri Nigam had been suspended pending enquiry on account of
certain strictures made against him by the Election Tribunal, these strictures
were later on expunged by the High Court on appeal. As a result the order of
524 suspension was set aside and Shri Nigam was reinstated in service in 1967.
it appears, however, that even on December 20, 1969, the Secretary, Ministry of
Home Affairs of the Central Government, while ,glancing through the character
roll of Shri Nigam found the aforesaid entry containing the strictures.
The All India Services Act, 1951 (No. LXI of
1951) regulates the recruitment and the conditions of service of persons
appointed to the All India Services.
Under section 3 of that Act the Central
Government, after consultation with the Governments of the States concerned
makes rules for the regulation of recruitment, and the conditions of service of
persons appointed to an All India Service. In exercise of powers under
sub-section (1) of section 3 of the said Act, the Central Government made the
AU India Services (Death-cum-Retirement Benefits) Rules, 1958. Rule 16 of these
Rules provides for superannuation, gratuity or, pension. The normal age of
retirement of the officers in the All India Service (hereinafter to Se
described as the Service) is 58 years as per rule 16(1).
Sub-rule (2) of rule 16 provides that a
member of the Service who has completed 30 years of qualifying service or has
attained the age of 55 years may, after giving at least three months' previous
notice in writing to the State Government, retire from the Service on any date
to be specified in the notice. We may read sub-rule (3) of rule 16 which is
material for our purpose "16(3) : The Central Government, in consultation
with the State Government, may require a member of the Service who has completed
30 years of qualifying service or who has attained the age of 55 years, to
retire in the public interest provided that at least three months previous
notice in writing will be given to the member concerned".
Later by a notification dated July 16, 1969,
the figures and words ". 5 5 years" in sub-rules (2) and (3) of rule
16 were substituted by the figures, and words "50 years".
Since sub-rule (3) of rule. 16 does not
contain any guidelines with regard to premature retirement the Government of
India, in the Ministry of Home Affairs issued certain instructions which are
printed at page 596 of the All India Services Manual (corrected upto 1.5.1967)
which is published under the authority of the Government. Paragraph 2 of those
instructions reads as under "With a view to ensure all-,India uniformity
of operation of this sub-rule [sub-rule (3) of rule 161 and also to ensure
equitable treatment in all cases of premature retirement the Government of
India have laid down the following criteria and procedure to be followed by the
State Governments etc. while referring cases to the Central Government under
this [sub-rule (3) of rule 16] (1)Six months before an officer attains the age
of 55, his record should be carefully examined by the State Government, or if
the officer is serving under the 525 Central Government by the Central
Government, and a provisional judgment formed whether he should be retired on
attaining the age of 55 years.
(2) Where the State Government come to the
conclusion a,,; a result of this examination that an officer should be retired
prematurely under Rule 16 (2) referred to above, they may make a proposal
according to the Central Government with a full indication of the
considerations and reasons for their proposal.
Where an officer is serving under the Central
Government, the Central Government would send a similar statement to the State
Government while inviting their views on the question of retiring the officer
prematurely. It is to be hoped that this" process of consultation between
the Central and the State Governments would be completed in each case in about
three months' time so that in the event of retirement being finally decided
upon, a notice could be given to the officer concerned at least three months
before the date on which be is to attain the age of 55 years and his retirement
thus given effect ,is soon as he does so.
(3) x x x x (4) In a case in which the State
and the Central Governments have reasonable cause to believe that an officer is
lacking in integrity, it would be appropriate to consider him for premature
retirement, irrespective of an assessment of his ability of efficiency in work.
(5) x x x x (6) x x x x (7). Once it is
decided to retain an officer beyond the age of 55 years, he should be allowed
to continue up to the age 58 without any fresh review unless this be justified
by any exceptional reasons, such as his subsequent work or conduct or the state
of his physical health, which may make earlier retirement clearly desirable.
The Government of India feel that in order that an officer who is cleared for
continuance at the stage of attaining the age of 55 years can settle down to
another three years of work with a sense of security and those working under
him accept his control and discipline without any reservation an annual review
between 'the years of 55 and 58 would not be desirable. In arriving at this
view , they have among other factors taken into consideration the fact that at
these stages, members of all-India Services generally occupy very senior
appointments on which particularly such a sense of security about their tenure
is desirable in the public interest. Further, 526 having arrived at an
assessment in favour of further continuance in service at the age of 54 years
or so, there would ordinarily be no occasion for changing the assessment during
the next three years,, so that an annual review would serve little practical
purpose. Finally, in any case, sub-rule (3) of rule 16 of the AIS (DCRB) Rules
would enable appropriate consideration at any time in very exceptional
On September 5 1967, the Ministry of Home
Affairs issued further instructions to the Chief Secretaries of all the State
Governments (except Nagaland) with regard to the criteria and procedure to be
followed regarding premature' retirement of the All India Service officers. We
may read paragraph 2 of those instructions :
" In clarification of and supplemental
to the previous instructions issued in the letter quoted above, the Government
of India would suggest the observance of the following criteria and procedure
for the aforesaid purpose :-(1) A review should be conducted twice a year in
the month of January and July to determine the suitability for continuance of
all officers who will attain the age of 55 years in the half year beginning
with the following July and January respectively. The review may be conducted
by committees constituted as follows x x x x (b) In the States, for I.A.S.
Officers the Review Committee may consist of the Chief Secretary, Member/
Senior Member/Chairman, Board of Revenue. and one other senior officer." x
x x x We may also refer to a notification dated August 14, 1969, from the
Ministry of Home Affairs, Government of India, to the Chief Secretaries of all
the State Governments with regard to the amendment to rule 16 for review of
records of officers at the age of 50 Paras 2 and 3 of this notification may be
quoted "2. 1 am to request that the State Governments may kindly take
steps to review the records of all those All India Service officers, who have
already completed or who are about to complete the age of 50 in the next 6
months or so and are serving in connection with the affairs of the State....
3. The, criteria and procedure for review of
records and also service of notice on those, who are proposed to 527 be retired
will be the same as outlined in this Ministry's letter No. 29/67/66-AIS(11),
dated the 5th September, 1967. This review at the age of 50 will be in addition
to the one contemplated later at the age of 55".
It is in pursuance of sub-rule (3) of rule 16
and in consonance with the instructions set out above that the State Government
of U.P. in October 1969 constituted a Review Committee consisting of Shri H. C.
Gupta, Chairman, Board of Revenue, Shri B. B. Lal, I. C. S., Chief Secretary and
the Member, Taxation Board of Revnue, to review the records of the members of
the Service who were to attain or had attained the age of 50 years. The list of
officers considered by this Committee included the respondent, Shri Nigam. The
Committee did not recommend any of the officers including Shri Nigam for
premature retirement and, on the other hand, recommended that they should be
continued in service. The State Government accepted the report of the Review
Committee and communicated its decision to the Central Government. On December
20, 1969, the Secretary, Ministry of Home Affairs of the Central Government,
addressed a letter to the State Government as follows :"I have glanced
through the character rolls of the I.A.S. Officers of Uttar Pradesh Cadre, who
have already reached the age of 50. 1 find that there are certain adverse
remarks in the character roll of Shri C. M. Nigam (IAS-1941).
A warning was administered to him on December
6, 1958 for taking undue interest in the ejectment of tenants from a house
owned by him at Lucknow. Another warning was issued to him on 31st August 1962
for having acquired a car from the Varanasi Corporation while working as
Administrator of the Varanasi Municipal Corporation. He was also once warned
for not observing proper rules and procedure for utilising the fund earmarked
for low income group housing scheme towards the construction of a market. Later
he was also placed under suspension in connection with some strictures passed
on him by the Election Tribunal in a case relating to the Gorakhpur
Parliamentary Constituency elections.
(2) In view of these, it appears to us that
this is a fit case in which proposals for his premature retirement under rule
16(3) of the All India Services (DCRB) Rules, 1958 should be considered. The
State Government however have not recommended his compulsory retirement. We do
not know if there were any particular reasons for taking a different view or
whether it was a case of oversight. We would like to have the considered views
of the State Government before Central Government come to a decision." On
January 29, 1970. the Chief Secretary to the State Government replied that the
review Committee bad considered the character roll 528 and the merits of the
case of Shri Nigam and found that he was suitable for continuing in service,
that the decision of the Committee was accepted by the State Government, the
State Government's decision in the matter was taken after thorough
consideration and that it did not consider it necessary to go into this
question again. No adverse decision contrary to the recommendation of the,
State Government was communicated by the Central Government to the State
Government in pursuance of the recommendation of the first Review Committee in
Next, we, find that the State Government
constituted a second Review Committee in May 1970 consisting of Shri Musaddi
Lal, Chief' Secretary, Shri J. D. 'Shukla, Member Board of Revenue and Shri J.
B. Tandon, the senior-most officer of the Indian Administrative Service. Before
this Committee 'the case of all the officers who had, attained the age of 50
years including those whose cases had been reviewed earlier, in October 1969,
were also placed for consideration. Thus Shri Nigam's case came to be
considered again by the second Review Committee. This time the Committee
recommended that two officers, one of whom was Shri Nigam, should be
prematurely retired. The State Government having accepted this recommendation;
forwarded the same to the Central Government. The Central Government asked the
State Government to send the proceedings of the Review Committee. On receipt of
that report the Central Government agreed with the views of the State
Government and passed the impugned order of compulsory retirement of the
It is submitted by the appellants that no
decision was made by the Government of India after receipt of the
recommendation of the State Government in October 1969 or even after
reiteration of the State Government's views in January 1970. Even the counsel
for the State conceded in the High Court that only if the Central Government
disagreed with the State Government a communication was made. The absence of
communication until the second Review Committee goes to show that there was no
adverse decision against the respondent.
As we have indicated earlier in the judgment
the learned Solicitor General, on behalf of the appellants, emphasised before
us his objection to the question of principle which was relied upon by the
Division Bench for quashing the impugned order, that is to say, the principle
applicable to the case of preventive detention.
We have no hesitation in holding that the
principle governing the order of preventive detention evolved by this Court
having regard' to the constitutional right of a person appertaining to
effective representation a ageist such order is not applicable in the case of
an order for compulsory retirement which casts no stigma on a Government
servant and cannot be equated with an order affecting his right by way of
disciplinary proceedings. An order of compulsory retirement, simpliciter, under
rule 16(3) does not affect any right of the Government servant.
529 Under rule 16(2), a Government servant
has a right to retire prematurely by giving three months' previous notice to
the Government. Similarly under rule 16 (3), after a Government servant serves
a period of 30 years or attains the age of 50 years, he cannot insist on a
right to be retained in the service. The Government may also exercise a
corresponding right under rule 16(3) to prematurely retire him at the age of 50
or 55 after giving three months' notice. Ins termination of service by way of
premature retirement cannot be equated with a penal order of removal or
dismissal. Even so, an order of compulsory retirement may be challenged in a
court if it is arbitrary or is actuated by. mala fides.
Even in the case of an order of dismissal. by
way of punishment if there, are several grounds on which the order is founded
and one or two of those fail and the order can still rest on the surviving
ground or grounds disclosing a prima facie case of guilt or misconduct, the
same cannot be held to be invalid by applying the subjective test of preventive
detention (see State of Orissa v. Bidyabhushan Mahopatra). Bidyabhushan (supra)
was a case of dismissal of a Government servant for misconduct on several
grounds, two of which failed. This Court, differing from the High Court on the
point held as follows:-"If the order of dismissal was based on the
findings on charges 1 (a) and1 (e) alone the Court would have jurisdiction to
declare the order of dismissal illegal but when the findings of the Tribunal
relating to the two out of five heads of the first charge and the second charge
was found not liable to be interfered with by the High Court and those findings
established that the respondent was prima facie guilty of grave delinquency, in
our view the High Court had no power to direct the Governor of Orissa to
reconsider the order of dismissal......
x x x x x Therefore if the order may be
supported on any finding as to substantial mis demeanour for which the
punishment can lawfully be imposed, it is not for the Court to consider whether
that ground alone would have weighed with the authority in dismissing the
If the above legal, position is true with
regard to a case of dismissal of a Government servant who but for the proof of
misconduct would have a right to continue in the service, it will, a fortiori,
hold good in the case of termination of service by way of compulsory retirement
under the rules where, after an employee' has done a specified years of service
or reached a specified age of reasonable duration, his right to continue, as
such, becomes again subject to his own volition under rule 16(2) or to exercise
of an equal right by the Government to prematurely retire him under rule 16(3).
(1)  Supp. 1 S.C.R. 648.
10-930SCI/77 530 As stated earlier, even in
the case of compulsory retirement under rule 16(3), an order may be challenged
in a court if it is arbitrary or mala fide. If, however, the Government reaches
a decision to prematurely retire a Government servant, bona fide, the order,
per se, cannot be characterised as by way of punishment since it does not cast
any stigma on the employee nor does the employee forfeit any benefit which he
has already earned by his service, nor does it result in any civil
The Division Bench took the view that since
the "gravest" of the reasons which was the order of suspension,
became nonexistent and was still operating in the mind of the Central
Government, the impugned order could not be supported on the ground that the
same was based on collateral consideration, one serious reason being absolutely
non-existent and thus illusory.
The High Court is not correct that the order
of suspension which was pending enquiry was a punishment under the rules.
It was not. Therefore, the degree of gravity
attached to the order by the High Court was neither appropriate nor correct. We
are also unable to agree with the High Court that except one out of the several
reasons, on which the impugned order was based, the entire order is liable to
be struck down as invalid.
The test which has been laid down in the case
of preventive detention is in the context of right to individual liberty of a
person which is a fundamental right enshrined in the Constitution. The Order of
compulsory retirement is passed in respect of a Government servant who has
ceased to have a right, as such, to continue in Government service under the rules
governing his employment. The analogy with cases under the Preventive Detention
Act is, therefore, absolutely out of place. The Division Bench is not right in
quashing the impugned order on that solitary ground.
This would, however, not conclude the controversy
Mr. Yogeshwar Prasad appearing on behalf of
the respondent, dos not challenge before us that the impugned order is vitiated
by mala fides. Even the Division Bench, differing from the learned single
Judge, found against the plea of mala fides. We are, therefore, relieved of
dealing with this plea.
This learned single Judge held the
instructions of the Ministry of Home Affairs as statutory and as such binding,
on a concession made in the counter-affidavit submitted before him by the Under
Secretary of the Personnel Department (Cabinet Secretariat). According to
counter-affidavit these instructions were made by the Government by rule 2 of
the All India Services (Conditions of Service-Residuary Matters) Rules, 1960.
It is not necessary to go into this aspect in detail in this case as to whether
the instructions can be elevated If to the status of statutory rules or even
constitutional directions as found by the learned single Judge. it is
sufficient for our purpose that these instructions do not violate any provision
of the Act or of the rules. Rule 16(3), being a rigorous rule vis-a-vis a
Government 531 servant not himself willing to retire under rule 16(2), has to
be invoked in a fair and reasonable manner. Since rule 16(3) itself does not contain
any guidelines, directions or criteria, the instructions issued by the
Government furnish an essential and salutary procedure for the purpose of
securing uniformity in application of the rule. These instructions really fill
up the yawning gaps in the provisions, and are embedded in the conditions of
These are binding on the Government and
cannot be violated to the prejudice of the Government servant (see also Sant
Ram Sharma v. State of Rajasthan & Anr(1) and Union of India v. K. P.
Joseph and Ors.(2).
Whether all the aforesaid instructions issued
by the Government are mandatory or not do not call for a decision in these
appeals. Some of them may not be mandatory. Notthat every syllable in the
instructions is material. Some of them may be described as prefatory and
However, one condition is absolutely
imperative in the instructions, namely, that once a Review Committee has
considered the case of an employee and the Central Government does not decide
on the report of the Committee endorsed by the State Government to take any
prejudicial action against an officer, after receipt of the report of the
committee endorsed by the State Government, there is no warrant for a second
Review Committee under the scheme of rule 16(3) read with the instructions to
reassess his case on the same materials unless exceptional circumstances emerge
in the meantime or when the next stage arrives. We should hasten to add that
when integrity of an officer is in question that will be an exceptional circumstance
for which orders may be passed in respect of such a person under rule 16(3), at
any time, if other conditions of that rule are fulfilled, apart from the choice
of disciplinary action which will also be open to Government. Although a faint
attempt was made before the learned single Judge that fresh facts were
available for the purpose of the second Review Committee, the High Court did
not accept the position nor do we find any reason to differ from that opinion.
It is, therefore, clear that the respondent's order of termination was made not
as a result of the report of the first Review Committee in accordance with the
instructions but on the recommendation of the second Review Committee which
could not have taken up his cage, as it was, on the self-same materials prior
to his reaching the age of 55 years.
We find from the instructions that reviews
have to be conducted twice in the career of a Government servant, once six
months prior to his attaining the age of 50 years and again six months prior to
his attaining the age of 55 years.
Since the amendment introducing the age of 50
years came in August 1969, after the respondent had already attained 50 years,
the first review in his case could be held only in October 1969. The second
Committee sat in May 1970 after the first Committee had recommended the
continuance of the respondent in service in October 1969 which was agreed to by
the State Government and even reiterated by it on a query from the Central
Government in January 1970. If the Central Government did not choose to decide
against the respondent then, the second Review Committee of May (1)  1
(2)  2 S.C.R.752.
532 1970 could not again consider the case of
the respondent in the usual course and under normal circumstances when he was
not even 53 years of age after having already got a clearance from the first
Review Committee which was endorsed by the, State Government only four months
earlier. It was open to the Central Government to differ from the State
Government's views. But it did not. We must make it clear that the decision
would have been entirely different if we were satisfied that there were
exceptional circumstances of any kind to reopen the case of the respondent.
The correct position that emerges from rule
16(3) read with the procedural instructions is that the Central Government,
after consultation with the State Government, may prematurely retire a civil
servant with three months' previous notice prior to his attaining 50 years or
55 years, as the case may be. The only exception is of those cases which had to
be examined for the first time after amendment of the rule substituting 50
years for 55 where even officers, who had crossed the age of 50 years, even
before reasoning 55, could be for the first time reviewed. Once a review has
taken place and no decision to retire on that review has been ordered by the
Central Government, the officer gets a lease in the case of 50 years upto the
next barrier at 55 and, if he is again cleared at that point, he is free and
untrammelled upto 58 which is his usual span of the service career. This is the
normal rule subject always to exceptional circumstances such as disclosure of
fresh objectionable grounds with regard to integrity or some other reasonably
Under Article 310, Government servants, high
or low, hold service during the pleasure of the President or the Governor as
the case may be., subject to two well-known limitations, namely, that they
shall not be dismissed or removed by an authority subordinate to that by which
they were appointed and secondly, that they shall not be dismissed or removed
or reduced in rank except after an enquiry into the charges clearly levelled
against them and affording a reasonable opportunity of being, heard in respect
of the charges. We need not refer to the proviso to Article 311(2) which deals
with certain exceptional cases.
Thus the pleasure doctrine under Article 310
is conditioned by constitutional restrictions under Article 31 1. Under Article
309 the appropriate legislature may regulate the recruitment and conditions of
service and until so done, the President or his delegate and the Governor or
his delegate may make rules regulating the recruitment and conditions of
service. The Act passed by the appropriate legislature and the rules made under
Article 309 will. however, be subject to the provisions of the Constitution
which include Article 311 and certainly the Fundamental rights.
The pleasure doctrine under Article 310 is in
a way unoffendingly resuscitated with appropriate vigour towards the tail end
of the career of a Government servant under rule 16(3) in the puublic interest
Compulsory retirement under the service rules is not by way of punishment, as
understood in service jurisprudence, however, unsavoury it 533 may be
otherwise. During the entire tenure of Government servants from the date of
temporary or probationary appointment till termination or retirement, as the
case may be, there is an undoubted security for them against dismissal, removal
or reduction in rank except in the, manner laid down under Article 311(2), read
with relevant laws or rules made under Article 309.
In order to pass the test of
constitutionality, rule 16(3) must needs be safeguarded by reasonable
procedural guidelines in order that here may be no scope for arbitrariness or
discrimination. That is how rule 16(3), being silent, instructions speak and do
vitative service in a vacuous field. The material procedure under the
instructions, as if interwoven in rule 16(3)., can on no account be held
invalid or impermissible.
Compulsory retirement under rule 16(3) is a
salutary safeguard in the armoury of the Government for maintenance of the
services in trim and fitness. Rule 16(3) is a constant reminder to the slacker,
the sluggish and the inefficient, not to speak of those who may be dishonest or
unscrupulous by reputation beyond redemption. At a reasonable point of service
a stage is reached when the Government reserves its undoubted right to have a
second look at the officers whether their retention in employment would be
useful in the public interest. That is the role of rule 16(3). Rule 16(3), with
the instructions, is a warning poster for every Government servant to conduct
himself properly, diligently and efficiently throughout his service career. The
Government has advanced the time of the first review by amendment of rule
16(3). As stated earlier, there are now two stages in a service career, namely,
at the age of 50 and 55, for the Government to take a decision to refurbish, invigorate
and stimulate the Service and with that sole object a decision has' to be
fairly taken well in time under rule 16(3) in accordance with the published
While purity in administration is certainly
to be desired, the security and morale of the Service have also to be
maintained. It is because of these high considerations that the Government has
issued appropriate and reasonable instructions to guide the authorities in.
passing orders for premature retirement. The instructions clearly show that
"having arrived at an assessment in favour of further continuance in
service at the age of 541 years or so, there would ordinarily be no occasion
for changing the assessment during the next three years, so that an annual
review would serve little practical purpose". The principle behind this
instruction is that the sword of Damocles must not bang over the officer every
six months after he attains the age of 50 years.
The learned Solicitor General next submitted
that the High Court was not right in going behind the order of compulsory
retirement and delving into the files of the Government to see for itself
whether the order could be sustained. We find that the records of service of
the respondent and other papers were produced by the learned Advocate General
before the High Court without any objection and without claiming any privilege
with regard to those documents. That being 534 the factual position, we are not
inclined to consider whether the course adopted by the High Court in this case
is open to objection. It will, however, be proper to observe that when an order
of compulsory retirement is challenged as arbitrary or mala fide by making
clear and specific allegations, it will then be certainly necessary for the
Government to produce all the necessary materials to rebut such pleas to
satisfy the court by voluntarily producing such documents-as will be a complete
answer to the plea. It will be for the Government also to decide whether at
that stage privilege should be claimed with regard to any particular document.
Ordinarily, the service record of a Government servant in a proceeding of this
nature cannot be said to be privileged document which should be shut out from
The impugned order of compulsory retirement,
as found above, was made on the recommendation of the second Review Committee
and that is in the teeth of the conditions of service flowing from the
instructions of the Home Ministry and hence cannot be sustained. The High Court
was right in quashing the said order.
In the result both the appeals are dismissed
although not on the ground stated by the High Court. The respondent is entitled
to one set of costs to be shared by both the appellants.