Jagdish B. Bhatt vs State of Gujarat and Others

J.N. Bhatt, J.—Whether the impugned order of premature retirement, dated 13-1-1989, and die resultant order dated 16-1-1989 are legal

and valid or not is the question to be examined and answered by this Court in this petition under Article 226 of the Constitution of India.

The petitioner has challenged the order recorded by the respondent No. 2, dated 13-1-1989, retiring the petitioner at the premature age of 55

years from service, inter alia, contending that it is illegal, arbitrary, discriminatory and violative of Arts. 14 and 16 of the Constitution of India. The

petitioner was, originally, appointed as Sub-overseer (Soil Conservation), by the order, dated 4-4-1956, and he was posted under the

establishment of the respondent No. 2. He was, also, promoted to the post of Agricultural Supervisor with effect from 1-1-1976. He worked as

Agricultural Supervisor on various places till the year 1982. In 1983, the petitioner was sent on deputation under the establishment of respondent

No. 3, Gujarat State Land Development Corporation Limited. It is the case of the petitioner that his service record, all throughout, since beginning

has been very good and he earned remarks accordingly all throughout. It is alleged by him that he was wrongly implicated in a misappropriation

case for which criminal complaint was filed, which, ultimately, came to be withdrawn by the concerned officer, on 10-7-1991.

The birth-date of the petitioner as per the service record is, 23-11-1933, and as per the provisions of Bombay Civil Services Rules, the

petitioner was to retire on completion of 58 years, like that, on 30-11-1991. However, the impugned order cut-short his service, which is, directly,

under challenge in this petition.

On behalf of the respondents, it is, inter alia, contended that the petitioner was appointed by an authority in the State of Saurashtra, as it then

was. The said post is. now, equivalent to the Joint Director, and therefore, the order passed by the authority was proper. It is the case of the

respondent-authority that the impugned order of premature retirement came to be recorded considering the confidential reports of last 10 years

and the fact that the petitioner was facing criminal prosecution involving financial irregularities. Instead of 58, the petitioner came to be prematurely

retired, at the age of 55, on account of his bad record and doubtful integrity, as per the version of the respondent-authority.

The petitioner has countered these allegations by filing affidavit in rejoinder. He has given elaborate account of rating of performance and marks

awarded by the respondent authorities in different years. In para 6 of the affidavit-in-rejoinder, it is specifically stated that service record of the

petitioner for the last 10 years prior to his premature retirement was good and his annual confidential reports carried remarks of ""good"", ""very

good"" and ""excellent"". It is also specifically stated that during the last 10 years, no adverse remarks had been communicated to him. Not only that,

he was found fit for promotion to the post of Agricultural Supervisor, and accordingly, he came to be promoted to the post by the order dated 1-

1-1976. The criteria for promotion to the post of Agricultural Supervisor is merit-cum-seniority. These aspects are not controverted further.

No doubt, under the service jurisprudence, the employer or the master is empowered to review and reconsider the continuance of service of an

employee beyond the age of 55 years, and in case, the authority concerned, finds that the service record is not satisfactory, or .that the continuance

of the employee beyond the period of 55 years for a further period of 3 years in Government employment is not for public good or for the public

interest, it is always open for the employer or the authority to pass appropriate order of premature retirement depriving the employee of the further

3 years.

It cannot, therefore, be disputed that compulsory retirement under the relevant provisions is permissible and it also cannot be disputed that the

exercise of power in this behalf by the authorities is subject to judicial scrutiny. The exercise of powers for imposing compulsory retirement at the

age of 55 has to be exercised, reasonably and justly and not in an arbitrary manner. It is incumbent upon the authority concerned to examine and

evaluate the service record and the conduct, character and the performance of the employee. The Review Committee, is therefore, obliged to

consider the overall picture emerging from the service record, and thereafter, it has to reach a conclusion as to whether the continuance of the

person beyond the age of 55 for a further period of 3 years is in the public interest or not. In the present case, the Review Committee did not

recommend the case of the petitioner for further continuance of the petitioner and suggested to impose compulsory retirement on the grounds

which are, in the opinion of this Court, not in existence. It appears that the Review Committee has taken a wrong view. This Court has no

hesitation in finding that the Review Committee, as such, has not considered the important aspects which it ought to have considered and it did

consider certain aspects which it should not have considered. Apart from the non-application of mind to the vital facts regarding service record

pertaining to the petitioner of the last 10 years, the criminal complaint, which was one of the major artillery used against the petitioner came to be

withdrawn by the authority, about which there is no dispute. Therefore, the case of the petitioner that he was wrongly, unnecessarily and

maliciously involved in the criminal complaint pertaining to alleged misappropriation of the funds is, prima facie, justified by the withdrawal of the

said complaint. In the light of the facts and circumstances, the impugned order of compulsory retirement in purported exercise of the provisions of

Rule 161 of the Bombay Civil Services Rules (B.C.S.Rs.) is not sustainable and is required to be quashed and set aside. The following undisputed

facts need to be noted :

(1) The petitioner was never communicated with any adverse remarks in the period of last 10 years which was considered by the Review

Committee.

(2) The service record of last 10 years was good, very good and excellent, which fact remained uncontroverted.

(3) The main base of the order of premature retirement was the criminal complaint of misappropriation of public fund in which the name of the

petitioner, which came to be withdrawn.

In the light of the aforesaid facts and circumstances, the impugned order of premature retirement is, totally fneritless and deserves to be quashed.

The view which this Court is inclined to take is very much reinforced by following decision of the Hon''ble Apex Court.

(1) Slate of Gujarat & Anr. v. Suryakant Chunilal Shah 1999 (3) GLR 2060 (SC).

Now, the question would arise as to whether the petitioner should be directed to be reinstated while quashing the impugned order, so mat he could

get the monetary benefits of salary of three years during which he admittedly did not work or the service of three years only to be considered for

the purpose of pension and other incidental benefits.

In the light of the facts and circumstances and considering the equity, this Court is inclined to record that the petitioner should be given the

benefit of 3 years'' service period only for the purpose of pensionary and retirement benefits and no order with regard to the arrears of salary

during the period of three years which otherwise he would have received, had he worked, be given.

In the result, the petition is allowed. The impugned order is quashed and set aside. It is directed that the petitioner shall be treated to have

completed the period of superannuation without any event insofar as allegations in the present case are concerned, and therefore, he shall be

deemed to have been reinstated during mat period, however, without any back wages. It is further directed that he shall be entitled to claim all

pensionary benefits as if he had completed the full period of superannuation and the Department shall calculate the pensionary benefits accordingly

and pay to the petitioners, as early as possible, but not later than the end of June 2000. Rule is made absolute to the above extent with no order as

to costs.

Petition allowed.