Sukhdeo
Vs. The Commissioner Amravati Division, Amravati & Anr [1996] INSC 645 (2 May 1996)
K. Ramaswamy,
G.B. Pattnaik
ACT:
HEAD NOTE:
THE
2ND DAY OF MAY, 1996 Present:
Hon'ble
Mr. Justice K. Ramaswamy Hon'ble Mr. Justice G.B.Pattanaik V.A. Bobde, Sr. Adv.,
S.D. Mudaliar and U.U. Lalit, Advs. with him for the appellant S.M. Jadhav. Adv.
for the Respondents.
O R D
E R
The
following Order of the Court was delivered:
Leave
granted, We have heard the counsel on both sides. This appeal by special leave
arises from an order of compulsory retirement of the appellant dated March 23, 1990 made in exercise of Rule 65(1) (b)
of the Maharashtra Civil Services (Pension) Rules, 1982. The appellant had
completed 30 years of service in Class III service but he had not completed 55
years of age. The Government relying upon the adverse remarks in the reports
for the years 1987-88 and 1988-89 exercised the above power to compulsorily
retire the appellant from service. When he impugned the order in a writ
petition which was subsequently transferred to the Maharashtra Administrative
Tribunal at Nagpur Bench at TA No. 198/92 by order dated April 20, 1993, the Tribunal dismissed the
application. Thus this appeal by special leave.
The
Government preserved power under Rule 10(4) (b) to retire Government Servant
which reads thus:
"any
Government Servant who holds a post in Class III service of the State, either pensionable
or non- pensionable, after he has attained the age of fifty five years."
The object of the compulsory retirement is to see that the inefficient and
corrupt persons but no sufficient evidence was available to dismiss or remove
him from service after enquiry, are weeded out from service with a view to
secure efficiency in public service and to maintain honest and integrity among
the service personnel. The question is:
whether
the respondents have exercised the said power to serve the above public
purpose? Rule 65 (1)(b) reads as under:
"65.
Retirement on completion of 30 years qualifying service.
(1) At
any time after a Government servant has completed thirty years' qualifying
service, he may retire from service, or he may be required by the appointing
authority to retire in the public interest.
Provided
that.......
(a) a
Government servant shall give a notice in writing to the appointing authority
at least three months before the date on which he wishes to retire; or
(b) the
appointing authority shall give a notice in writing to a Government servant at
least three months before the date on which he is required to retire in the
public interest, or three months pay and allowances in lieu of such notice.
It is
seen that when the compulsory retirement was sought to be made under Rule 65(1)(b)
as indicated earlier, the Government exercise the power only for public
purpose, namely, to augment efficiency in public service. We have called for
the record and the same has been placed before us. The entries for the years
1987-88 and same remarks verbatim repeated for 1988-89 by the same officer
would indicate that the appellant is an "industrious" man, "his
capacity to get work done by subordinates is good"; his "relationship
with the colleagues and the public is good";
general
intelligence is "satisfactory". However, in the column on technical
ability (where relevant), is reported as "not satisfactory",
"special attitude is good", "administrative ability including
judgment, initiative and drive-not satisfactory", "integrity and
character are good", fit to continue in service, "fit for promotion,
if due" and general assessment; "irregular, rarely found at Head
quarter, poor performance in a recovery work, bad in public image". On the
basis of this last remark of general assessment, notice was given to him and he
was compulsorily retired from service on that basis. The question is; whether
the said exercise of power, as has been stated earlier, is in the public
interest and whether the appellant is not found to augment the efficiency in
the service.
In
view of the above remarks made by the officer, the conclusion reached is
obviously incorrect and it is not in public interest. A man does not become
poor in public interest. A man does not become poor in public image when his
relationship with the public and subordinates is good and he is a man of
integrity and honesty and he has got the intelligence satisfactory in
discharging of his duties and fit for promotion. How can in such circumstances
his performance would be unsatisfactory when he is capable to coordinate with
subordinates and get the work done. How his technical ability is not satisfactory.
The remarks are mutually inconsistent and reasons are self-evident of lack of bonafides
in making these remarks. Under these circumstances, it could be characterised
that the remarks were not bona fide made in public interest but a self- serving
statement to weed him out from service.
It is
settled law that when the Government resorts to compulsorily retire a
Government servant, the entire record of service, particularly, in the last
period of service required to be closely scrutinised and the power would be
reasonably exercised. In State Bank of India etc. v. Kashinath Kher & Ors.
etc. [JT 1996 (2) SC 569 at 578 para 15], this Court has held that the
controlling officer while writing confidential and character role report, he
should be a superior officer higher above the cadres of the officer whose
confidential reports are written. Such officer should show objectivity,
impartiality and fair assessment without any prejudice whatsoever with highest
sense of responsibility to inculcate in the officer's devotion to duty, honesty
and integrity so as to improve excellence of the individual officer. Lest the
officers get demoralised which would be deleterious to the efficacy and
efficiency of public service. In that case it was pointed out that confidential
reports written and submitted by the Officer of the same cadre and adopted
without any independent scrutiny and assessment by the committee was held to be
illegal. In this case, the power exercised is illegal and it is not expected of
from that high responsible officer who made the remarks. When an officer makes
the remarks he must eschew of making vague remarks causing jeopardy to the
service of the subordinate officer. He must bestow careful attention to collect
all correct and truthful information and give necessary particulars when he
seeks to make adverse remarks against the subordinate officer whose career
prospect and service were in jeopardy. In this case, the controlling officer
has not used due diligence in making remarks. It would be salutory that the
controlling officer before writing adverse remarks would give prior sufficient
opportunity in writing by informing him of the deficiency he noticed for
improvement. In spite of the opportunity given if the officer/employee does not
improve then it would be an obvious fact and would form material basis in
support of the adverse remarks. It should also be mentioned that he had given
prior opportunity in waiting for improvement and yet was not availed of so that
it would form part of the record.
The power
exercised by the controlling officer is per se illegal. The Tribunal has not
considered this aspect of the matter in dismissing the petition. The appellant
is entitled to reinstatement with all consequential benefits. The appeal is
accordingly allowed with exemplary costs quantified at Rs.10,000/- recoverable
by the State from the officer who made the remarks.
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