Union of India Vs. M.E. Reddy & ANR
[1979] INSC 186 (19 September 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
SEN, A.P. (J)
CITATION: 1980 AIR 563 1980 SCR (1) 736 1980
SCC (2) 15
CITATOR INFO :
R 1981 SC 594 (6) RF 1982 SC 793 (5) R 1984
SC 630 (4) R 1992 SC1020 (1,5,14,15,29)
ACT:
Compulsory retirement-order passed in terms
of Section 16(3) of the All India Services (Death-cum-Retirement) Rules, 1958,
whether in violation of Articles 311(2) of the Constitution.
HEADNOTE:
The respondent in the two appeals was
compulsorily retired by an order dated 20-4-74 under Rule 16(3) of the All
India Services (Death-cum-Retirement) Rules, 1958. The respondent challenged
the said order by filing a Writ Petition before the Andhra Pradesh High Court.
A single Judge of that Court allowed the petition. The said decision was
affirmed by the Division Bench in appeal.
Allowing the appeals by certificate the
Court,
HELD: 1. An analysis of Rule 16(3) of the All
India Services (Death-cum-Retirement) Rules, 1958 clearly shows that the
following essential ingredients of the Rule must be satisfied before an order
of compulsory retiring a Government servant is passed: (i) that the member or
the service must have completed 30 years of qualifying service or the age of SO
years (as modified by notification dated 16-7-1969); (ii) that the Government
has an absolute right to retire the Government servant concerned because the
word "require" confers an unqualified right on the Central Government
servant; (iii) that the order must be passed in public interest; and (iv) that
three months' previous notice in writing shall be given to the Government
servant concerned before the order is passed. [742 G-H. 713 A-B] .
The provision gives an absolute right to the
Government and not merely a discretion, and, therefore implied it excludes the
rules of natural justice. [743 B]
2. Compulsory retirement after the employee
has put in a sufficient number of years of service having qualified for full
pension is neither a punishment nor a stigma so as to attract the provisions of
Article 311(2) of the Constitution. In fact, after an employee has served for
25 or 30 years and is retired on full pensionary benefits, it cannot be said
that he suffered any real prejudice. [743 C- D]
3. The object of Rule 16(3) is to weed out
the dead wood in order to maintain a high standard of efficiency and initiative
in the State service. It is not necessary that a good officer may continue to
be efficient for all times to come. It may be that there may be some officers
who may possess a better initiative and higher standard of efficiency and if
given chance the work of the Government might show marked improvement. In such
a case compulsory retirement of an officer who fulfils the conditions of Rule
16(3) is undoubtedly in public interest and is not passed by way of punishment.
Similarly, there may be cases of officers who are corrupt or of doubtful
integrity and who may be considered fit for being compulsorily retired in
public interest. Since 737 they have almost reached the fag end of their career
and their retirement would A not cast any aspersion, nor does it entail any
civil consequences. Of course, it may be said that if such officers were
allowed to continue they would have drawn their salary until the usual date of
retirement.
But, this is not an absolute right which can
be claimed by an officer who has put in 30 years of service or attained the age
of 50 years. Rule 16(3) does nothing of the sort of attaching stigma. [743 D-H]
4. The jurisprudential philosophy of Rule
16(3) and other similarly worded provisions like F.R. 56(j) and other rules
relating to Government servants is noteworthy. Rule 16(3) as it stands is one
of the facets of the doctrine of pleasure incorporated in Article 310 of the
Constitution and is controlled only by those contingencies which are expressly
mentioned in Article 311. If the order of retirement under Rule 16(3) does not
attract Article 311(2), it is manifest that no stigma of punishment is
involved. The order is passed by the highest authority, namely, the Central
Government in the name of the President and expressly excludes the application
of rules of natural justice. [744A-C] The safety valve of public interest is
the most powerful and the strongest safeguard against any abuse or colourable
exercise of power under this Rule. Moreover, when the Court is satisfied that
the exercise of power under the rule amounts to a colourable exercise of
jurisdiction or is arbitrary or malafide, it can always be struck down. While
examining this aspect of the matter the Court would have to act only on the
affidavits, documents annexures, notifications and other papers produced before
it by the parties. It cannot delve deep into the confidential or secret records
of the Government to fish out materials to prove that the order is arbitrary or
malafide. The court, has, however, the undoubted power subject to any privilege
or claim that may be made by the State. to send for the relevant. confidential
personal file of the Government servant and peruse it for its own satisfaction
without using it as evidence. [744 C-E] The main object of Rule 16(3) is to
instil a spirit of dedication and dynamism in the working of the State Services
so as to ensure purity and cleanliness in the administration which is the
paramount need of the hour as the services are one of the pillars of our great
democracy. Any element or constituent of the service which is found to be lax
or corrupt, inefficient or not up to the work or has outlived his utility has
to be weeded out. Rule 16(3) provides the methodology for achieving the object.
[744 E-G;
Before the Central Government invokes the
power under Rule 16(3), it must take particular care that the rule is not used
as a ruse for victimisation by getting rid of honest and unobliging officers in
order to make way for incompetent favourites of the Government which is bound
to lead to serious demoralisation in the service and defeat the laudable object
which the rule seeks to sub-serve. If any such case comes to the notice of the
Government the officer responsible for advising the Government must be strictly
dealt with. . [744 G-H] Compulsory retirement contemplated by Rule 16(3) is
designed to infuse the administration with initiative and activism so that it
is made poignant and piquant, specious and subtle so as to meet the expanding
needs of the nation which require explanation of "fields and pastures
now". Such a retirement 738 involves no stain or stigma nor does it entail
any penalty or civil consequences. In fact the rule merely seeks to strike a
just balance between the termination of the completed career of a tired
employee and maintenance of top efficiency in the diverse activities of the
administration.
[745 A-B] An order of compulsory retirement
on one had causes no prejudice to the Government servant who is made to lead a
restful life enjoying full pensionary and other benefits and on the other gives
a new animation and equanimity to the services The employees should try to
understand the true spirit behind the rule which is not to penalise them but
amounts just to a fruitful incident of the service made in the larger interest
of the country. Even, if the employee feels that he has suffered, he should
derive sufficient solace and consolation from the fact that this is his small
contribution to the country for every good cause claims its martyr. [745 B-D]
Shyam Lal v. State of U.P., [1955] S.C.R. 26; T. G. Shivcharan Singh and Ors.
v. The State of Haryana A.I.R.
1965 S.C. 280; Union of India v. Col. J. N.
Sinha and Anr., [1971] 1 SCR 791; M. V. Puttabhatta v. The State of Mysore and
Anr., [1973] 1 SCR 304; State of Assam & Anr. etc. v. Prasanta Kumar Das
etc. [19731 3 S.C.R. 158 & 167; Tara Singh etc. v. State of Rajasthan and
Ors. [1975] 3 SCR 1002;
Mayenghaon Rahamohan Singh v. The
Commissioner (Admn.) Manipur and Ors., [1977] 1 SCR 791; applied.
Before passing an order under Rule 16(3), it
is not an entry here or an entry there which has to be taken into consideration
by the Government but the overall picture of the officer during the long years
of his service that he put in has to be considered from the point cf view of
achieving higher standards of efficiency and dedication so as to be retained
even after the officer has put in the requisite number of years of service.
[750 C-D] Under the various rules on the subject, it is not every adverse entry
or remark that has to be communicated to the officer concerned. The superior
officer may make certain remarks while assessing the work and conduct of the
subordinate officer based on his personal supervision or contact. Some of these
remarks may be purely innocuous or may be connected with general reputation of
honesty or integrity that a particular officer enjoys. It will indeed be
difficult if not possible to prove by positive evidence that a particular
officer is dishonest but those who have had the opportunity to watch the
performance of the said officer from close quarters are in a position to know
the nature and character, not only of his performance but also of the
reputation he enjoys. Therefore on the ground of non communication of adverse
remarks, the impugned orders cannot be set aside. [748? G-H, 749 A] R. L.
Butail v. Union of India and ors., [1971] 2 SCR 55 and union of India v. Col.
J. N. Sinha and Anr., [1971] 1 SCR 791; applied.
State of Uttar Pradesh v. Chandra Mohan Nigam
& Ors., [1978] 1 SCR 721; referred to.
Madan Mohan Prasad v. State of Bihar and
Ors., [1973] 4 S.C.C 166= [1973] 1 SCR 630; distinguished.
All that is necessary is that the Government
of India, before passing an order under Rule 16(3) should consider the report
of the Review Committee 739 which is based on full and complete analysis of the
history of the service of A the employee concerned. [753 F-G] In the instant
case, it was clearly pleased by the appellants ill the High Court that the
report of the Review Committee was in fact considered by the Government of
India before passing the impugned order. An examination of the confidential
file also confirms this. [753 G-H 754 A] State of U.P. v. Chandra Mohan Nigam
and Ors. [1978] 1 SCR 721 and S. R. Venkataraman v. Union of India and Anr.,
[19,9] 2 SCR 202; distinguished.
Chief Security officer, Eastern Railway &
Anr. v. Ajay Chandra Bagchi [1975] 2 SLR 660 (Calcutta); overruled.
In the instant case (a) there is no legal
error in the impugned order passed by the Government of India, retiring Mr.
Reddy. The order is not arbitrary as could be seen from the material of the
record. The Government of India acted on the orders passed by the Home Minister
concerned who had considered the report of the Review Committee in its various
aspects. There is nothing to show that Reddy was victimised in any way. On the
other hand, the history Of his service shows that he was always given his due.
He was taken by the I.P.S. and allotted the year 1952. He was promoted to the
selection grade also at the proper time. The order of suspension was withdrawn
and the department enquiry was dropped and the officer was reinstated and later
promoted as D.I.G. These facts completely militate against the concept of
victimisation. [756 F-H, 757 A] (b) The impugned order is a bonafide order and
does not suffer from any legal infirmity. [757 G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 12 and 13 of 1977.
From the Judgement and order dated 17-11-1976
of the Andhra Pradesh High Court in Writ Appeal Nos. 591-592/76.
U. R. Lalit R. N. Sachthey and Girish Chandra
for the Appellant in C. A. 12/77.
M. Abdul Khadar and G. Narayana Rao for the
Appellant in C.A. 13/177.
T. S. Krishna Murthy Iyer and A. Subba Rao
for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J.-These two appeals (one by the State of Andhra Pradesh and the
other by the Union of India) by certificate are directed against a Division
Bench Judgment of the Andhra Pradesh High Court dated 17-11- 1977 confirming
the decision of a Single Judge by which an order passed by the Central
Government compulsorily retiring M. E.
Reddy, respondent No. I (hereinafter referred
to 740 as Reddy) from service in public interest was quashed in a writ petition
filed before the High Court.
The facts of the case lie within a very
narrow compass particularly in view of the fact that we have decided not to go
into the question of malafide alleged against respondent No. 3, Mr. K.
Brahmanand Reddy before the High Court because Reddy in a previous Writ filed
in the High Court against the order of suspension had expressly withdrawn all
the allegations against Mr. K. Brahmanand Reddy respondent No. 3 in the High Court.
We shall, however, touch the fringes of this question so far as it directly
affects the order impugned passed by the Government of India.
Reddy started his career in the Police
Service as Deputy Superintendent of Police in the year 1948. In the year 1958
Reddy was appointed to the Indian Police Service and 1952 was the year of his
allotment. On 31-7-1958 Reddy was promoted as Superintendent of Police in the
State of Andhra Pradesh and held charge of a number of Districts from time to
time. Reddy was also awarded the President Police Medal near about the 14th
August, 1967, but the award of the President Police Medal was withheld as Reddy
was placed under suspension by the Government on 11-8-1967 pending departmental
enquiry into a number of allegations made against him. It is not necessary for
us to detail those allegations which are not germane for the purpose of
deciding these appeals.
In 1969 Reddy filed a writ petition in the
Andhra Pradesh High Court praying that the order of suspension passed against
him dated 11-8-1967 may be quashed as it was passed on false allegations and at
the instance of Mr. K. Brahmanand Reddy who was the Chief Minister of Andhra
Pradesh at that time. A large number of Limitations in support of the plea of
malice were made by Reddy. The writ petition was admitted by the High Court
which passed an order dated 17-7-1969 staying all further proceedings including
the written statement by Reddy to the six charges framed against him by the
department. When the writ came up for hearing before the single Judge, the
State Government represented to the High Court that it had decided to withdraw
the order of suspension and reinstate the respondent No. 1, Reddy. The State
Government accordingly withdrew the order of suspension and directed that the
period of suspension may be treated as on duty. Thereafter Reddy filed an
application before the High Court seeking permission to withdraw the petition
as also the allegations made in the petition against the Chief Minister
respondent No. 3 in the High Court. The High Court accepted the 741 prayer of
Reddy and allowed the petition to be withdrawn and passed A the following
order:- "It seems that orders reinstating the petitioner and virtually
cancelling the suspension order are being issued. The learned Advocate for the
petitioner therefore desires to withdraw the writ petition. The writ petition
is therefore dismissed as withdrawn".
As a result of these developments the
departmental proceedings against Reddy were dropped and he was given Selection
Grade which appears to have been withheld because of the order of suspension
passed against Reddy. On 27-4- 1971 Reddy was given the Selection Grade with
retrospective effect from 6-6-1969. Thereafter by an order dated 28-4-1971
Reddy was promoted to the Rank of Deputy Inspector-General of Police by the
State Government. It appears that during the course of the departmental enquiry
the following entry appears to have been made in the Annual Confidential Report
of Reddy:- "He is under suspension. Allegation against him is that he
concocted a case against Venugopala Reddy (attempt to rape) to please the
Inspector-General of Police K. K. Nanmbiar. There is also a strong suspicion
about his integrity. The Anti-corruption Branch are enquiring into the allegations.
In this enquiry allegations are proved".
After the proceedings were dropped and Reddy
was promoted as Deputy Inspector-General of Police he made a representation to
the Government that the adverse entry contained in the Annual Confidential
Report may be expunged.
The Government of Andhra Pradesh after
considering the representation of Reddy passed the following order dated 20-
4-1974:
"The Government, after careful
consideration, have decided that as the statements are factual it would be
sufficient if a suitable entry is made in the said confidential report to the
effect that the suspension was subsequently lifted and the period was treated
duty and that further action was stayed as there were no good grounds to hold
him guilty of any of the charges levelled against him.
(3) A suitable entry has accordingly been
made in the confidential report for the year ending 31-3-1968".
We have expressly referred to this order of
the Government to show that it completely demolishes the case of malafide pleaded
by 11-625SCI/79 742 Reddy against Mr. K. Brahmanand Reddy, respondent No. 3 in
the High Court because if Mr. K. Brahmanand Reddy had any animus against the
officer he would not have accepted his representation and denuded the effect of
the adverse entry made at the time when Reddy was suspended. According to the
allegations made by the State of Andhra Pradesh on the 7th August, 1975 a
Review Committee consisting of the Chief Secretary, Home Secretary and the
Inspector-General of Police considered various cases of police officers
including the case of Reddy and made their recommendations. On 11th September,
1975 the Government of India after considering the report of the Review
Committee ordered compulsory retirement of Reddy in public interest on the expiry
of three months' notice from the date of service of order on him. This order
was passed by the Central Government in consultation with the State Government
hereinafter referred to as the impugned order) as may be extracted thus:-
"In exercise of the powers conferred by Sub-rule 3 of Rule 16 of the All
India Service (Death-cum- Retirement) Rules, 1958, the President, in
consultation with the Government of Andhra Pradesh, is pleased to order the
retirement of Sri M. E. Reddy a member of the Indian Police Service borne on
the cadre of Andhra Pradesh, in the public interest, on the expiry of three
months from the date of service of this order on him".
This order purports to have been passed under
sub-rule (3) of Rule 16 of the All India Service (Death-cum- Retirement) Rules,
1958 which reads as follows:- "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".
An analysis of this Rule clearly shows that
the following essential ingredients or the Rule must be satisfied before an
order compulsorily retiring a Government servant is passed:
1. That the member of the Service must have
completed 30 years of qualifying service or the age of SO years (as modified by
notification dated 16-7- 1969),
2. That the Government has an absolute right
to retire the Government servant concerned because the word require"
clearly confers an unqualified right on the Central Government;
743 3. That the order must be passed in
public interest;
4. That three months' previous notice in
writing shall be given to the Government servant concerned before the order is
passed.
It may be noted here that the provision gives
an absolute right to the Government and not merely a discretion, and,
therefore, impliedly it excludes the rules of natural justice. It is also not
disputed in the present case that all the conditions mentioned in Rule referred
to above have been complied with. It is a different matter that the argument of
Reddy is based on the ground that the order is arbitrary and mala fide with
which we shall deal later.
On a perusal of the impugned order passed by
the Government of India it would appear that the order fully conforms to all
the conditions mentioned in Rule 16 (3). It is now well settled by a long
catena of authorities of this Court that compulsory retirement after the
employee has put in a sufficient number of years of service having qualified
for full pension is neither a punishment nor a stigma so as to attract the
provisions of Art. 311 (2) of the Constitution. In fact, after an employee has
served for 25 to 30 years and is retired on full pensionary benefits, it cannot
be said that he suffers any real prejudice. The object of the Rule is to weed
out the dead wood in order to maintain a high standard of efficiency and
initiative in the State Services. It is not necessary that a good officer may
continue to be efficient for all times to come. It may be that there may be
some officers who may possess a better initiative and higher standard of
efficiency and if given chance the work of the Government might show marked
improvement. In such a case compulsory retirement of an officer who fulfils the
conditions of Rule 16 (3) is undoubtedly in public interest and is not passed
by way of punishment. Similarly, there may be cases of officers who are corrupt
or of doubtful integrity and who may be considered fit for being compulsorily
retired in public interest, since they have almost reached the fag end of their
career and their retirement would not cast any aspersion nor does it entail any
civil consequences. Of course, it may be said that if such officers were
allowed to continue they would have drawn their salary until the usual date of
retirement. But this is not all absolute right which can be claimed by an
officer who has put in 30 years of service or has attained the age of 50 years.
Thus, the general impression which is carried by most of the employees that
compulsory H retirement under these conditions involves some sort of stigma
must he completely removed because rule 16 (3) does nothing of the sort.
744 Apart from the aforesaid considerations
we would like to illustrate the jurisprudential philosophy of rule 16 (3) and
other similarly worded provisions like Rule 56 (j) and other rule relating to
the Government servants. It cannot be doubted that rule 16 (3) as it stands is
but one of the facets of the doctrine of pleasure incorporated in Article 310
of the Constitution and is controlled only by those contingencies which are
expressly mentioned in Article 311.
If the order of retirement under rule 16 (3)
does not attract Article 311 (2) it is manifest that no stigma of punishment is
involved. The order is passed by the highest authority, namely, the Central
Government in the name of the President and expressly excludes the application
of rules of natural justice as indicated above. The safety valve of public
interest is the most powerful and the strongest safeguard against any abuse or
colourable exercise of power under this Rule. Moreover, when the Court is
satisfied that the exercise of power under the rule amounts to a colourable
exercise of jurisdiction or is arbitrary or made it can always be struck down.
While examining this aspect of the matter the Court would have to act only on
the affidavits, documents, annexures, notifications and other papers produced
before it by the parties. It cannot delve deep into the confidential or secret
records of the Government to fish out materials to prove that the order is
arbitrary or mala fide. The Court has, however, the undoubted power subject to
any privilege or claim that may be made by the State, to send for the relevant
confidential personal file of the Government servant and peruse it for its own
satisfaction without using it as evidence.
It seems to us that the main object of this
Rule is to instill a spirit of dedication and dynamism in the working of the
State Services so as to ensure purity and cleanliness in the administration
which is the paramount need of the hour as the Services are one of the pillars
of our great democracy. Any element or constituent of the Service which is
found to be lax or corrupt, inefficient or not up to the mark or has outlived
his utility has to be weeded out. Rule 16 (3) provides the methodology for
achieving this object.
We must, however, hasten to add that before
the Central Government invokes the power under Rule 16 (3), it must take
particular care that the rule is not used as a ruse for victimisation by
getting rid of honest and unobliging officers in order to make way for
incompetent favourites of the Government which is bound to lead to serious
demoralisation in the Service and defeat the laudable object which the rule
seeks to sub-serve. If any such case comes to the notice of the Government the
officer responsible for advising the Government must be strictly dealt 745
with. Compulsory retirement contemplated by the aforesaid rule is designed to
infuse the administration with initiative and activism so that it is made
poignant and piquant, specious and subtle so as to. meet the expanding needs of
the nation which require exploration of "fields and pastures now".
Such a retirement involves no stain or stigma nor does it entail any penalty or
civil consequences. In fact, the rule merely seeks to strike a just balance
between the termination of the completed career of a tired employee and
maintenance of top efficiency in the diverse activities of the administrating.
An order of compulsory retirement on one hand
causes no prejudice to the Government servant who is made to lead a restful
life enjoying full pensionary and other benefits and on the other gives a new
animation and equanimity to the Services. The employees should. try to
understand the true spirit behind the rule which is not to penalise them but
amounts just to a fruitful incident of the Service made in the larger interest
of the country. Even if the employee feels that he has suffered, he should
derive sufficient solace and consolation from the fact that this is his small
contribution to his country for every good cause claims its martyr.
These principles are clearly enunciated by a
series of decisions of this Court starting from Shyam Lals(1) case to Nigams
(2) case which will be referred to hereafter.
In the case of Shyam Lal v. The State of
Uttar Pradesh & Anr.(1) This Court clearly held that compulsory retirement
does not amount to removal or termination nor does it involve any stigma. In
this connection, a Bench of 5 Hon'ble Judges of this Court observed as
follows:- "There is no such element of charge or imputation in the case of
compulsory retirement. The two require- ments for compulsory retirement are
that the officer has completed twentyfive years' service and that it is in the
public interest to dispense with his further services. It is true that this
power of compulsory retirement may be used when the authority exercising this
power cannot substantiate the misconduct which may be the real cause for taking
the action but what is important to note is that the directions in the last
sentence in Note l to article 465-A 746 make it abundantly clear that an
imputation or charge is not in terms made a condition for the exercise of the
power. In other words, a compulsory retirement has no stigma or implication of
misbehaviour or incapacity".
"The more important thing is to see
whether by compulsory retirement the officer loses the benefit he has earned as
he does by dismissal or removal. The answer is clearly in the negative. The
second element or determining whether a termination of service amounts to
dismissal or removal is, therefore, also absent in the case of termination of
service brought about by compulsory retirement.
The foregoing discussion necessarily leads us
to the conclusion that a compulsory retirement does not amount to dismissal or
removal and, therefore, does not attract the provisions of Article 311 of the
Constitution or of rule 55".
The same principle was reiterated by another
Bench of S Hon'ble Judges of this Court in the case of T. G. Shivacharan Singh
& Ors. v. The State of Mysore.(1) In this case, the Court was considering
the scope of rule 285 which was almost in the same terms as rule 16 (3) and
provided that a Government servant could be retired, after completing
qualifying service of 30 years or on attaining the age of 50 years if such
retirement was considered in public interest.
In this connection, the Court observed as
follows:- "It would thus be clear that though the normal age of retirement
under R. 95 (a) is 55 years, under R. 285 it is competent to the Government to
retire compulsorily a government servant prematurely if it is thought that such
premature retirement is necessary in the public interest .............. Mr.
Venkataranga Iyengar contends that this Rule is invalid, because it contravenes
Art. 14 as well as Art. 16 (1) of the Constitution. In our opinion this contention
can no longer be entertained. because it is concluded by a long series of
decisions of this Court".
Even the constitutionality of the provisions
concerned was upheld by this Court.
The leading case on the subject which has
been decided some years before and has been consistently followed by latter
decisions 747 of this Court is the case of Union of India v. Col. J. N.
Sinha & Anr.(1). This Court was
considering the scope and ambit of rule 56 (j) which is also worded in the same
terms as rule 16 (3). Rule 56 (3) runs thus:- "Notwithstanding anything
contained in this Rule the appropriate authority shall, if it is of the opinion
that it is in the public interest so to do 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 allowances in lieu of such notice.
(i) if he is in Class I or Class II Service
or post the age for the purpose of direct recruitment to which is below 35
years, after he has attained the age of 50 years.
(ii) In any other case after he has attained
the age of 55 years. D Provided that nothing in this clause shall apply to a
Government servant referred to in clause (e) that entered Government service on
or before 23rd July 1966 and to a Government servant referred to in clause
(f)".
After considering the various shades,
aspects, purpose and object E of such provision this Court observed as
follows:- "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".
"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 formed or the decision is based on
collateral grounds or that it is 748 an arbitrary decision Compulsory
retirement involves no civil consequences. The aforementioned rule 56 (j) is
not intended for taking any penal action against the government servant. 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 organisations and more so in government organisations,
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
energies its machinery and make it more efficient by compulsorily retiring
those who in its opinion should not be there in public interest".
The observations made above clearly reveal
the object of this rule and lay down that where an officer concerned is of
doubtful integrity he can be compulsorily retired under this rule.
Mr. Krishnamurthy Iyer appearing for Reddy
submitted that the order impugned is passed on materials which are non-existent
in as much as there are no adverse remarks against Reddy who had a spotless career
throughout and if such remarks would have been made in his confidential reports
they should have been communicated to him under the rules. This argument, in
our opinion, appears to be based on a serious misconception. In the first
place, under the various rules on the subject it is not every adverse entry or
remark that has to be communicated to the officer concerned. The superior
officer may make certain remarks while assessing the work and conduct of the
subordinate officer based on his personal supervision or contact. Some of these
remarks may be purely innocuous, or may be connected with general reputation of
honesty or integrity that a particular officer enjoys. It will indeed be
difficult if not impossible to prove by positive evidence 749 that a particular
officer is dishonest but those who has had the opportunity to watch the
performance of the said officer from close quarters are in a position to know
the nature and character not only of his performance but also of the reputation
that he enjoys. The High Court has also laid great stress on the fact that as
adverse entries had not been communicated to Reddy, therefore, the order
impugned is illegal. We find ourselves unable to agree with the view taken by
the High Court or the argument put forward by learned counsel for Reddy.
Moreover, the appellant had denied in their counter-affidavit at page 59 Vol.
II that there was no adverse entry against the officer concerned prior to 1968.
This averment is contained in para 6 of the counter affidavit filed by Under
Secretary to the Government of India in the High Court. This aspect as
considered by this Court in the case of R. L. Butail v. Union of India ors.(l)
and the matter is concluded by the very apt observations made by Hidayatullah,
C.J. who spoke for the Court and observed as follows:- "These rules
abundantly show that a confidential report is intended to be a general
assessment of work performed by a Government servant subordinate to the
reporting authority, that such reports are maintained for the purpose of
serving as data of comparative merit when questions of promotion, confirmation
etc. arise.
They also show that such reports are not
ordinarily to contain specific incidents upon which assessments are made except
in cases Where as a result of any specific incident a censure or a warning is
issued and when such warning is by an order to be kept in the personal file of
the Government servant. In such a case the officer making the order has to give
a reasonable opportunity to the Government servant to present his case. The
contention, therefore, that the adverse remarks did not contain specific
instances and were, therefore, contrary to the rules, cannot be sustained.
Equally unsustainable is the corollary that because of that omission the
appellant could not make an adequate representation and that therefore the
confidential reports are vitiated". G "It may well be that in spite
of the work of the appellant being satisfactory, as he claimed it was, there
may have been other relevant factors, such as the history of the appellant's
entire service and confidential reports throughout the period of his service,
upon which the appropriate authority may still decide to order appellant's
retirement under F.R. 56 ( j ) ".
750 In this case the Court followed and
endorsed the decision of this Court in the case of J. N. Sinha (supra).
Here we might mention that the appellants
were fair and candid enough to place the entire confidential personal file of
Reddy before us starting from the date he joined the Police Service and after
perusing the same we are unable to agree with Mr. Krishnamurthy Iyer that the
officer had a spotless career. The assessment made by his superior officers
from the very beginning of his service until the impugned order was passed show
that at best Reddy was merely an average officer and that the reports show that
he was found to be sometimes tactless, impolite, impersonated and suffered from
other infirmities though not all of them were of a very serious nature so as to
amount to an adverse entry which may be communicated to him. We might also
mention that before passing an order under rule 16(3) it is not an entry here
or an entry there which has to be taken into consideration by the Government
but the overall picture of the officer during the long years of his service
that he puts in has to be considered from the point of view of achieving higher
standard of efficiency and dedication so as to be retained even after the
officer has put in the requisite number of years of service. Even in the last
entry which was sought to be expanded through a representation made by Reddy
and other entries made before it appears that the integrity of Reddy was not
above board.
Even in the case of State of Uttar Pradesh v.
Chandra Mohan Niganm & Ors.(1) on which great reliance has been placed by
Mr. Krishnamurthy Iyer, it was observed thus:- "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.
Thus, even according to the decision rendered
by this Court in the aforesaid case the fact that an officer is of doubtful
integrity stands on a separate footing and if he is compulsorily retired that
neither involves any stigma nor any error in the order. We might also refer to
an observation made by the Single Judge of the High Court whose judgment was
confirmed by the Division Bench, who appears to have misconstrued a judgment of
this Court and by the process of such misconception seems to have ignored the
later decisions of this Court given by small Benches on the exact question at
751 issue. The learned Judge relied on the decision in the case of Madan Mohan
Prasad v. State of Bihar & Ors.(1) in support of the view that the order of
retirement even if it is in public interest violates Article 311 (2) of the
Constitution even though no punishment was intended. The learned Judge observed
as follows:- "In Madan Mohan v. State of Bihar (supra) the Supreme Court
considered the validity of retirement order of a Judicial officer who for the
reason that he worked for seventeen years asserted was permanent member of the
service when his retirement was ordered under Bihar pension Rules of 1950
questioned the order under Art. 32 of the Constitution of India that it was a
punishment within the meaning of Art. 311 (2) of the Constitution of India".
and then relies on certain observations of
this Court in order to hold that the termination of service of the officer
casts a stigma on his character and attracts Article 311(2) of the
Constitution. The learned Judge further relied on a decision of this Court in
support of the proposition that a judgment rendered by S Judges of the Supreme
Court would prevail over a judgment of a smaller Bench. So far this part of the
observation is concerned, there can be no doubt. But the learned Judge appears
to have completely misconstrued the decision in Madan Mohan 's case (supra)
which was not a case of compulsory retirement at all, nor was it a case where
the officer concerned was retired under a rule like rule 56(j) or 16(3) as we
have indicated in this case. On the other hand, in that case what happened was
that the officer was appointed as a temporary Munsif and under the terms of the
notification by which he was appointed it was provided that the appointment of
temporary Munsif could be terminated by giving one month's notice. The High
Court it appears, was not satisfied with the work of Munsif and accordingly
decided to terminate his services. But the Chief Minister in one of his
speeches on the floor of the House had made certain observations implying that
the services of the Munsif were being terminated on account of inefficiency and
misconduct. In these peculiar circumstances, therefore, this Court held that
the termination of the Munsif even though he was a temporary servant cast a
stigma and, therefore, attracted Article 311 of the Constitution. In this
connection, the Court observed as follows:- "It seems to us that on the
facts of this case, the order dated January 15, 1972 violates Article 311(2) of
the Constitution. The petitioner had first been holding a temporary post and
then a permanent post for nearly seventeen 752 years. The Chief Minister s
statement in the Assembly that his services were not satisfactory and the
Government was considering serving show-cause notice and the fact that his
services were terminated without any enquiry being held would inevitably lead
the public to believe that his services had been terminated on account of
inefficiency or misconduct. This did cast a stigma on his character".
It is, therefore, manifest that the facts of
this case and the points involved were absolutely different from the facts of
the present case. The aforesaid case relied upon by the High Court would have
absolutely no application to the present case where Reddy was neither a
temporary servant nor was his service terminated. The Single Judge of the High
Court was, therefore, absolutely wrong in equating the principles of compulsory
retirement under rule 16(3) with termination of the services of a temporary
employee under the rules.
Similarly, the case of J. N. Sinha (supra)
was followed and relied on by later decisions of this Court in the case of N.
V. Puttabhatta v. The State Mysore & Anr.(1) as also in the case of State
of Assam and Anr. etc. v. Basanta Kumar Das etc. etc.(2) Again, in the case of
Tara Singh etc. etc. v. State of Rajasthan & Ors(8) it was pointed out that
compulsory retirement under the provisions similar to rule 16(3) cannot amount
to a stigma, and the incidents of compulsory retirement were adroitly summed up
by Ray, C.J. who observed as follows:- "The right to be in public
employment is a right to hold it according to rules. The right to hold is
defeasible according to rules. The rules speak of compulsory retirement. There
is guidance in the rules as to when such compulsory retirement is made. When
persons complete 25 years of service and the efficiency of such persons is
impaired and yet it is desirable not to bring any charge of Inefficiency or
incompetency, the Government passes order of such compulsory retirement. The
Government servant in such a case does not lose the benefits which a Government
servant has already earned. These orders of compulsory retirement are made in
public interest.. This is the safety valve of making such orders so that no
arbitrariness or bad faith creeps in".
753 "There is no stigma in any of the
impeached orders of compulsory retirement".
The learned Chief Justice pointed out that
having regard to the safeguards contained in the rules particularly the fact
that the retirement was in public interest the safety valve of safeguarding
malafide or arbitrariness in the order was clearly contained in the provision
itself. J. N. Sinha's case (supra) was endorsed and followed in this case also.
In a recent decision of this Court in the
case of Mayenghoan Rahamohan Singh v. The Chief Commissioner (Admn.) Manipur
& Ors. the Court observed as follows:- "Compulsory retirement is not a
punishment. There is no stigma in compulsory retirement".
"The affidavit evidence is that the
order of compulsory retirement was made in public interest. The absence of
recital in the order of compulsory retirement that it is made in public
interest is not fatal as long as power to make compulsory retirement in public
interest is there and the power in fact is shown in the facts and circumstances
of the case to have been exercised in public interest".
In this case, the Court was considering the
scope of rule 56(j) which, as already indicated, is couched in the same terms
as rule 16(3).
Learned counsel for Reddy heavily relied on
the decision of this Court in the case of State of Uttar Pradesh v. Chandra
Mohan Nigam & Ors. (supra) and contended that as the Government of India
while passing the impugned order had not considered the report of the Review
Committee the order is vitiated by an error of law. We have-gone through this
decision and we are unable to agree with the contentions put forward by learned
counsel for Reddy. The decision referred to above is not an authority for
holding that the decision of the Review Committee is binding on the Government
of India. All that is necessary is that the Government of India should, before
passing an order under rule 16(3) consider the report of the Review Committee
which is based on full and completed analysis of the history of the service of
the employee concerned. In the instant case, it is clearly pleaded by the
appellants in the High Court that the report of the Review Committee was in
fact considered by the Government of India before passing the impugned order.
The confidential file placed before us also clearly shows that on the note
sheet the notes by the 754 Secretary on the recommendations of the Review
Committee the Home Minister, Mr K. Brahmananda Reddy has appended his
signatures and has passed the order that Reddy should be compulsorily retired.
Furthermore, in Nigam's case (supra) referred to above what had weighed with
the Court was that after the Review Committee had submitted its report to the
Government, the Government ordered a second Review Committee just in order to
enable the Review Committee to give an adverse report against the officer
concerned. Such a course of action was condemned and deprecated by this Court.
In the instant case, however, there is no allegation by Reddy that any second
Committee was ever appointed. Even so in Nigam's case (supra) this Court did
not depart from the ratio laid down in Sinha's case (supra) and followed by
later cases but observed as follows:- "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, 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
consequences".
The Court at page 531 of the Report clearly
pointed out that the instructions issued by the Government for constituting the
Review Committee were not mandatory. We have already indicated above that this
Court made it absolutely clear that where a person was retired under Rule 16(3)
on the ground that his integrity was in question, the observations made by this
Court would have no application.
in the instant case, it has been clearly
averred by the appellants that the integrity of Reddy was not beyond suspicion
and the remarks were rot expressly expunged by the Chief Minister.
Reliance was also placed by learned counsel
for Reddy on a recent decision of this Court in the case of Smt. S.R. Venkataraman
v. Union of India & Anr. The facts of this case, however, are, clearly
distinguishable from the facts of the present case. In that case there was a
finding of fact by this Court that the order of retirement was mala fide and
amounted to victimisation and the allegation made by the appellant before this
Court were not only not disputed but counsel for the Union of India went to the
extent of saying that he was not in a position to support the impugned order
which was 755 unfair. It was in the background of these circumstances that the
Court held that the order was malafide and observed as follows:- "The
appellant has pointed out in this connection that her service record was
examined in March, 1976 by the Departmental Promotion Committee, with which the
Union Public Service Commission was associated, and the Committee considered
her fit for promotion to the selection grade subject to clearance in the
departmental proceedings which were pending against her, and that she was
retired because of bias and animosity. Our attention has also been invited to
the favourable entry which was made in her confidential report by the Secretary
of the Ministry.
Mr. Lekhi, learned counsel for the Union of
India, produced the relevant record of the appellant for our perusal. While
doing so he frankly conceded that there was nothing on the record which could
justify the order of the appellant's premature retirement. He went to the
extent of saying that the Government was not in a position to support that unfair
order" "The influence of extraneous matters will be undoubted where
the authority making the order has admitted their influence. It will therefore
he a gross abuse of legal power to punish a person or destroy her service
career in a manner not warranted by law by putting a rule which makes a useful
provision for the premature retirement of government servants only in the
'public interest', to a purpose wholly unwarranted by it, and to arrive at
quite a contradictory result. An administrative order which is based on reasons
of fact which do not exist must therefore be held to be infected with an abuse
of power".
These observations, however, do not apply to
the facts of the present case.
Lastly, Mr. Krishnamurthy Iyer, learned
counsel for Reddy heavily relied on a decision of the Calcutta High Court in
the case of Chief Security Officer, Eastern Railway & Anr. v. Ajay Chandra
Bagchi on a perusal of this decision we are of the opinion that this case was
not correctly decided as it is directly opposed to the ratio decidendi of J. N.
Sinha's case (supra) where this Court held that the rule in question expressly
excludes the principles of natural justice and, therefore, it is manifest that
the Calcutta High Court was in error in basing 756 its decision on rules of
natural justice. The Calcutta High Court in this case had observed as follows:-
"Thus even if the Railway authorities had absolute right to retire the
Respondent petitioner subject to the requirements as mentioned hereinbefore and
in terms of paragraph 3 of Chapter XVII of the Regulations read with item 6 of
the instructions in the Form in Appendix XVlI in the admitted position of the
case, viz., certain adverse entries were taken into consideration in having him
compulsorily retired, the action as taken is thus certainly against all
principles of natural justice and norms of fair play and as such the action so
taken cannot be supported. The said right under paragraph 3 of Chapter XVII
read with item 6 of the instructions in the Form in Appendix XVIII can be used
and those principles can be applied or resorted to subject to the principles of
natural justice, which incidentally is the restraint put on the pretended
misuse of power".
The High Court seemed to rely on certain
adverse entries which were taken into consideration when the order of
retirement was passed. We have already pointed out relying on the dictum of
this Court laid down by Hidayatullah, C.J.
that the confidential reports can certainly
be considered by the appointing authority in passing the order of retirement
even if they are not communicated to the officer concerned.
Thus, the two grounds on which the Calcutta
decision was based are not supportable in law. For these reasons, therefore, we
hold that the decision of the Calcutta High Court referred to above was wrongly
decided and is hereby overruled.
On a consideration of the authorities
mentioned above we are satisfied that there is no legal error in the impugned
order passed by the Government of India retiring Reddy. It was, however, contended
by counsel for Reddy that reading the order as a whole it contains an odour of
victimisation, so as to make the order arbitrary. We are, however, unable to
find any material on the record to show that the order was in any way
arbitrary. The Government of India acted on the orders passed by the Home
Minister concerned who had considered the report of the Review Committee in its
various aspects. There is nothing to show that Reddy was victimised in any way.
On the other hand, the history of his service shows that he was always given
his due. He was taken in the I.P.S. and allotted the year 1952.
He was promoted to the selection grade also
at the proper time. The order of suspension was withdrawn and the departmental
enquiry was dropped 757 and the officer was reinstated and later promoted as
D.I.G.
These facts completely militate against the
concept of victimisation. It appears that on an overall consideration of the
entire history of the service of Reddy and the various stages through which he
had passed it was considered in the interest of administration and to ensure
better initiative and efficiency to retire him in public interest.
We are also unable to find any element of
arbitrariness in the impugned order. For these reasons, therefore, the first
contention raised by learned counsel for Reddy must be rejected.
It was then contended that the order was mala
fide and passed because Respondent No. 3, the Chief Minister of Andhra Pradesh
bore serious animus against Reddy and wanted him to do certain things which he
refused to do, hence he was compulsorily retired. Apart from the fact that all
the allegations regarding mala fide stood withdrawn as indicated in the earlier
part of the judgment it is alleged in the counter affidavit and this averment
has not been disputed before us that on 5-1-1970 the following Memo was filed
on behalf of Reddy before the High Court:
"The petitioner withdraws the writ
petition including the allegations against the Hon'ble Chief Minister of Andhra
Pradesh. The writ petition may kindly be dismissed as with drawn".
Furthermore, the counter affidavit at p. 73
Vol. IV contains a letter submitted by the Second Go Pleader on 5-1-1970 the
relevant part of which runs thus:- "I have discussed the matter with the
Advocate for the petitioner. He agrees to withdraw the writ petition as also
the allegations made thereunder against the Hon'ble Chief Minister and is
prepared to file a Memo.
Copy of which is enclosed herewith" Once
Reddy had withdrawn the allegations of malafide against respondent No. 3 in the
High Court, it is not open to him to revive those allegations in these
proceeding when the impugned order is passed.
The impugned order as held by us is a bona
fide order and does not suffer from any legal infirmity, and, therefore, we
cannot permit Reddy to play a game of hide and seek with the Court by
withdrawing the allegations of mala fide against respondent No. 3 in the High
Court and then reviving them when after some time an adverse order against him
was passed. Moreover, if respondent No. 3 was really inimically disposed
towards Reddy he would not have either dropped the departmental enquiry or
reinstated him, or have promoted him to the rank 758 of D.I.G.. Furthermore,
the Chief Minister Mr. K. Brahmananda Reddy has himself filed a personal
affidavit before the High Court which is contained at page 235 Vol.
III wherein he has categorically denied all
the allegations made against him by Reddy. The assertions made in the affidavit
are fully supported by circumstantial evidence and the conduct of Reddy
himself. For these reasons, therefore, the second contention regarding the
impugned order being mala fide is also rejected.
The result is that all the contentions raised
by counsel for Reddy fail. We are clearly of the opinion that the High Court
committed a clear error of law in quashing the impugned order which was fully
justified by rule 16(3), and did not suffer from any legal infirmity and was
also in consonance with the law laid down by this Court starting from Shyamlal's
case upto Sinha's and Nigam's case (supra) discussed above.
We, therefore, allow the appeals, set aside
the order of the High Court and restore the impugned order retiring Reddy. In
the peculiar circumstances of the case there will be no order as to costs.
S.R. Appeal allowed.
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