Manindra Chandra Chandra vs State of West Bengal

Amiya Kumar Mookerji, J.—This Rule is directed against an order passed by the Superintendent of Police, 24-Parganas, dated August 13, 1973, by which the Petitioner was made to retire in public interest in pursuance of Rule 75(aa) of the West Bengal Service Rules, Pt. I, 1971, as amended.

The Petitioner joined the Police department as a literate constable on August 28, 1936. Thereafter, he was promoted to the post of Sub-Inspector sometime in 1947 and was confirmed in the said rank in 1961. At the material time, the Petitioner was the Court Sub-Inspector attached to the Barasat Court. He attained the age of 55 years on July 1, 1971. He was directed to retire by an order of compulsory retirement with effect from July 4, 1973. The Petitioner challenged the said order in an earlier proceeding under Article 226 of the Constitution. The said Rule was disposed of as the Respondents withdrew the notice of premature retirement, but they were given liberty to issue a fresh notice without prejudice to the rights and contentions of both the parties. The previous order was withdrawn on August 10, 1973, by the Superintendent of Police, 24-Parganas. On August 13, 1973, a fresh order was issued directing the premature retirement of the Petitioner with effect from the date of communication of the said order and with a further direction that in lieu of three months'' notice, three months'' pay and allowance would be paid to the Petitioner. The Petitioner being aggrieved by the said order moved this Court in an application under Article 226 of the Constitution and obtained the present Rule.

Mr. Chakraborty, appearing on behalf of the Petitioner, contended that there was no compliance of the provisions of Rule 75(aa) of the West Bengal Service Rules, pt. I, in view of the fact that the appointing authority did not form his independent opinion whether the Petitioner should be retired in public interest. Mr. Chakraborty also referred to a memorandum issued by the Chief Secretary to the Government of West Bengal dated May 16, 1973, which is annex. E to the petition, wherein certain procedures were required to be followed in cases of premature retirement of the State Government officers under Rule 75(aa).

The records of the case were produced before me by Mr. Mukherjee, who is appearing on behalf of the Respondents. It appears that there was an enquiry against the Petitioner made by the Addl. Superintendent of Police and he submitted a report on December 4, 1972. In that report he suggested that as the Petitioner had already completed 55 years of age, he might be asked to retire as his continuance would not be good for the administration. If the said suggestion was not found suitable, then the Petitioner should be immediately transferred from the Barasat Court and departmental proceedings would be drawn against him for lack of supervision. It also appears that by a memorandum dated February 20, 1973, from the Deputy Secretary to the Vigilance Commission, West Bengal, the Superintendent of Police, 24-Parganas, was informed that the Vigilance Commission agreed with the Addl. Superintendent of Police''s suggestion of compulsory retirement of the Petitioner from the Government service under the proviso to Rule 75(a) of the West Bengal Service Rules, Pt. I. The reference to Rule 75(a) apparently was a mistake and that mistake also appeared in the order of the Superintendent of Police, 24-Parganas dated April 4, 1973. The previous order had to be withdrawn in the previous occasion on account of that mistake. It does not appear from the records that the Superintendent of Police did form his own opinion on the basis of the report of the Addl. Superintendent of Police that in public interest the Petitioner should be retired form the Government service under the relevant rules. A Division Bench of this Court held in Appeal from Original Order No. 432 of 1973, decided on November 26, 1973, in the case of A.C. Bose v. Union of India (1975) S.L.J. 144 following the decision of the Supreme Court in the case of Col. J.N. Sinha v. Union of India and Anr. AIR 1971 S.C. 43 that

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 the public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts.

In order that the decision may not be arbitrary, it should be based on some grounds or material which is germane to the question whether it is in public interest to retire the Government servant. And if the decision is based on no such grounds or material or is based on a ground or material which is not germane to the issue, it would-be an arbitrary decision.

It was a case under the F.R. 56(J)(1), the provisions of which are similar to Rule 75(aa) of the West Bengal Service Rules, Pt. I.

It appears that the instructions referred to by Mr. Chakraborty, which is annex. E to the petition, published on May 16, 1973 and the original order of retirement in the instant case was passed on April 4, 1973. That being so, there was no occasion by appointing authority to follow the procedure laid down in that memorandum. However, there is another direction of the Inspector-General of Police, West Bengal, dated April 20, 1972, to all the Superintendents of Police, wherein it is stated that:

It is imperative that whenever a question of compulsory retirement of a Government servant on attaining the age of 55 years is taken up, the appointing authority should keep on record the specific reasons and the grounds for which the retirement of the Government servant is considered to be in public interest. The mere observation ''that the retirement is considered to be in the public interest'' should not do. The decision would be supported by specific grounds and reasons.

It is also observed by the Division Bench in A.C. Bose''s case Supra that:

In determining whether the order of compulsory retirement is justified in the instant case, we have to consider not only the provisions of F.R. 56(J)(1) but also the directions, instructions and notifications of the Government issued from time to time to supplement the Rule on matters on which the Rule is silent.

It is abundantly clear that the instructions of the Inspector-General of Police dated April 20, 1972, have not been followed in the instant case. Moreover, as I have said already that it does not appear from the records that before issuing the impugned notice of retirement the appointing authority did form his independent opinion upon the materials which were placed before him that in public interest the Petitioner should be compulsorily retired under Rule 75(aa) of the West Bengal Service Rules, Pt. I, 1971.

It is pointed out by Mr. Mukherjee that the Petitioner has already attained his 58 years of age on July 1, 1974. Therefore, even if the order of retirement is set aside the Petitioner cannot be taken back into his service.

In the result, this Rule is made absolute. The impugned order, which is annex. D to the petition, is set aside by a writ of mandamus.

No order is made as to cost.