Ram Sewak Pathak vs Union of India & Ors.

The petitioner who is a matriculate, was recruited as a store man (technical) on 15.11.1962 and promoted as Storekeeper GradeI in the year

1977. He was further promoted as Store Supervisor GradeI in 1987. It is submitted that the petitioner was promoted on account of his three

successive ACRs having extraordinary good and excellent outstanding. Vide his notice dated 2.1.1992, respondent No. 3 directed the petitioner

that he shall retire from service on the forenoon of the day following the date of expiring of three months notice period computed from the date

following the date of Service of notice upon him. The notice was issued under cl. (J) of Rule 56 of the Fundamental Rules read in conjunction with

subrule (1) (b) of Rule 48 of the Central Civil Services (Pension) Rules, i972 (hereinafter referred to as the 1972 Rules). It is alleged that the

petitioner cannot be retired under cl. (j) of Rule 56 of the Fundamental Rules as he is neither in Class 1 nor class H. His case was never allegedly

considered objectively by the committee which is not bona fide being not based on any relevant material. It is further alleged that the order has

been passed arbitrarily as no public interest is shown to be achieved by passing of such an order. As Ms ACRs were all good the petitioner could

not be retired prematurely. The order impugned is stated to be illegal, unconstitutional, arbitrary and against the principles of natural justice. Rule

48 of the 1972 Rules is allegedly not applicable in the case of the petitioner. It has been prayed that the order of retirement of the petitioner issued

by respondent No, 3 be quashed and he be allowed to remain in service of the respondents.

In the objections filed on behalf of the respondents it has been admitted that the petitioner was appointed and promoted as claimed on his turn. No

out of turn promotion was accorded to the petitioner. The assessment of performance of the petitioner has been varying from year to year and on

the whole it has not been very good during the fast 5 years. His behavior and discipline was found very poor by his superior for which he has been

warned a number of times in writing. Review of GREF personnel, as the petitioner is, on their attaining the age of 55 years or on the completion of

30 years service, whichever is earlier, is required to be carried out by the Review Committee as per the provisions obtained in Govt. of India

Ministry of Home Affairs. OM No. 250113/1/77Estt (A) dated 5.1.1978. While considering the review case of the petitioner, the review

committee has not approved his retention in GREF service on the completion of 30 years of service in consequence of which the appointing

authority served three months notice upon him for his retirement on completion of the notice period in public interest in exercise of the powers

conferred by Cl. (j) of Rule 56 of the Fundamental Rules read in, conjunction with subrule (I) (b) of Rule 48 of the 1972 Rules.

I have heard learned counsel for the parties who have submitted that this petition be disposed of at this stage by issuing appropriate directions.

It is now well settled that a Government servant, generally holds the office at the pleasure of the State which is, however, regulated by the rules

framed and the judgments pronounced. It is true that perspective security of tenure is a valuable right in favour of the Govt. servant but it cannot be

denied that the State has the power to frame rules for compulsory retirement of a Govt. official before the date of superannuation. The power,

scope and object of the executive to retire a person prematurely was thoroughly examined by a Division Bench of this Court in Letters Patent

Appeal No. 29/87 entitled State v. Rajinder Singh Rana decided on 1,8.1988 (Srinagar Bench) wherein it w""s held that :

i) An order of prematurely retiring a person can be passed only if the conditions prescribed in the relevant statute or service rules are fulfilled;

ii) The order to retire must be passed only by the appropriate authority after forming a requisite opinion based relevant material;

iii) Such an opinion should be formed in public interest which should not he personal, political or motivated by other extraneous considerations.

iv) Order of compulsory retirement can be challenged only en the ground that either the requisite opinion was riot formed or that the order was

passed arbitrarily or on collateral grounds;

v) The opinion of the competent authority, if found based upon objective satisfaction, cannot be substituted by the opinion of the court and the

court will not see the sufficiency or otherwise of the material available with the authority at the time of passing of the order of premature retirement;

vi) While exercising the judicial powers, the court has merely to see whether a rational mind would conceivably be satisfied that the compulsory

retirement of the officer concerned was necessary in the public interest.

vii) If the adverse entries are relied upon pertaining only to performance of an employee and not to his integrity, those must be relevant and not

stale.

In view of the law laid down by the Apex Court and various High Courts in the country, the right of th3 stare to compulsory retire a person cannot

be interfered with by the Court unless power shown in prematurely retiring a civil servant is exercised without jurisdiction male fide or in violation of

the service rules.

In the instant case the respondents appear to have decided to compulsory retire the petitioner in exercise of the powers conferred upon them under

Cl. (j) of Rule 56 of the Fundamental Rules read in conjunction with subrule (1) (b) of Rule 48 of the [972 Rules. Rule 56(j) of the Fundamental

Rule reads as under :

56 (j) notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in the public interest to do so

have the absolute right to retire any government servant by giving him notice of not less then three months in writing or three month's pay and

allowances in lieu of such notice, (i) If he is in Class I or Class II service and had entered Government service before attaining the age of thirtyfive

years after he has attained the age of fiftyyears.

Note 1: Appropriate authority, means the authority which has the power to make substantive appointment to the post or service from which the

Government servant is required or wants to retire.

While dealing with the scope of this rule, the Supreme Court in Baldev Raj Chadda V. Union of India and others1981 SLJ 188, held:

The Fundamental Rules govern the Central Civil Services and ensure the career security which is the sine qua non of contended service. But

potential compulsory retirement under F R. 56(j) (i) haunting the afternoon of official life injects an awesome uncertainty which makes even the

honest afraid the efficient tremble and almost everyone genuflect not a happy prospect for a civil servant too young to sit idle and old to get a new

job A jetsam has no option but to become driftwood of join the other profession where everyone, desirable or undesirable had a chance. We

stress this deleterious latency of F 56 (j) (i) to undeserve the unwitting harm to public interest it does in the name of public interest. Judicial

monitoring becomes an unpleasant necessity where power may be humor and a career may be a victim.'

It was further held that the order of compulsory retirement must be passed by the appropriate authority who should form the requisite opinion not

subjective satisfaction but objective and bona fide based on relevant material. The requisite opinion must be in the public interest nor personal,

political or other interest but solely governed by the interest of public service. The power to compulsory retire a person has to be exercised strictly

in accordance with the criteria prescribed after consideration of the representation of the victim, if presented.

It is not disputed that the petitioner is neither in Class I or Class II service or post as in the mandate of Rule 56 (j) (i) of the Fundamental Rules.

The Supreme Court in case union of India v, K. R. Tahiliani and anr. (1980 SLJ 314), While dealing with the case of an officer officiating ClassI or

Class II in the service held that the said rule is meant to cover only those who are on a post on regular basis, that, in a substantive capacity and not

on an officiating basis only. If a person who is officiating the post of Class I or Class II in the service, cannot be retired in exercise of the powers

vested in the respondents under FR 56(j) (i) much less the power can be pressed into service to retire a person from service who is not at all

covered by any of the aforesaid of classes. As it is not disputed that the petitioner was admittedly neither in Class I nor in Class II of the service,

be could not be compulsory retired in exercise of the powers vested in the respondents under FR 56(j) (i) Being conscious of the fact that the

petitioner could not have been retired under FR 5$(j) (j), learned counsel for the respondents bas tried to clothe the action of the respondents by

pressing into service Rule 48 of the 1979 Rules which provides that, ""at any time after a Government servant has completed 30 years qualified

service he may be. required by the appointing authority to retire in the public interest."" The 1972 Rules would not be applicable in the case of the

petitioner mainly on the ground that the power conferred to retire even if assumed under the aforesaid Rules was nonexistent at the time when he

joined the service and could not be applied to him to his prejudice at a later stage without providing any guidelines for its exercise. The 1972 Rules

also are not intended to govern the service conditions of a civil servant before his retirement.

According to the instructions regarding the premature retirement of a Govt. servant, it is provided : ""Rules position

(1) In accordance with the provisions of Fundamental Rule 56(j) the appropriate authority has the absolute right to retire, if it is necessary to do so

in public interest, any government employee as follows :

(i) If he is in Group A or B service or post and has entered Government service before attaining the age of 35 years, after he has attained 'he age

of 50 years;

(ii) In any other case, after he has attained the age of 55 years provided that in the age of a Group D official such action can be taken if he entered

service after 23rd July, 1966.

In other words, a government servant belonging to Group A and B who has entered govern met service after attaining the age of 35 years, and

officers belonging to Group C and D can be prematurely retired after they have attained the age of 55 years with the excepting of Group D

officials, who entered service on or before 23rd July, 1966.

(2) In addition a government servant in C service or post who is not governed by any pension rules, can also be retired after he has completed

thirty years* service, under FR56(i).

(3) Identical provisions exist in Article 459 of the Civil Service Regulations.

(4) Provisions also exist in Rule .........48 of the CCS (Pension) Rules, 1972 for the retirement of a government employee by giving him three

months notice, if it is necessary to do so in public interest, after he has completed 25 years of qualifying service, if he is a and 30 years of qualifying

service for pension if he is a In other words a government employee who is a ,and who may belong to Group A, B, C or D can be prematurely

retired, irrespective of the age at the appropriate time, after he has completed 30 years of qualifying service. (A copy of the relevant rule is

Annexure I).

(5) Provisions exist in the relevant rules which confer reciprocal right on government employee to seek voluntary retirement after he has attained

the age of 50/55 years or has completed 20 years of service, as the case may be.

The respondents have not produced any record to show that the petitioner belonged to Group A, B, C or D as referred to in the instruction issued.

Otherwise also contradictory provisions could not be made in the Fundamental Rules and the 3972 Rules. The 1972 Rules could not be pressed

into service for retiring a person if his case is otherwise not covered by Rule 56 of the Fundamental Rules. If the respondents were conscious that

the petitioner could not be retired under Rule 56 of Fundamental Rules but was liable to be retired under rule 48 of the 1972 Rules, there was no

necessity or occasion for mentioning of Rule 56 of the Fundamental Rules in the order impugned. As admittedly, Rule 56 of the Fundamental Rules

is not applicable, the order impugned cannot be allowed to affect the rights of the petitioner by taking recourse to Rule 48 of the 1972 Rules. The

order impugned shows the confused state of affairs and nonapplication of mind by the concerned competent authority. It, is therefore, apparent

that the order impugned has been passed without jurisdiction and is not sustainable. Under the circumstances the writ petition is allowed and the

order dated 2.1.1993, impugned in this petition as passed by respondent No. 3, is set aside with a direction that the petitioner shall not be retired

on the basis of the said order.

The parties shall bear their own costs. This also disposes of CM.P. No. 378 of 1993.