State of Gujarat vs Dhirajlal Harilal Oza

Kundan Singh, J.—Being aggrieved by the judgment and order dated 30.4.1994 in Regular Civil Appeal No. 62 of 1988 by the Assistant

Judge, Surat dismissing the appeal and confirming the judgment and decree dated 30.6.88 in Regular Civil Suit No. 282 of 1984, the appellants-

original defendants have filed the present Second Appeal.

The respondent-plaintiff was born on 8.1.1932. He was selected as class-II Gazetted Officer in Bombay Forest Service and he joined on

2.4.1957 as Assistant Conservator of Forests. He was promoted as Class-I Gazetted Officer on 15.1.1962 in Gujarat Forest Service. The

Review Committee submitted its report on 5.7.83 recommending the name of the respondent-plaintiff for premature retirement. The

recommendation was made to the Government accordingly. The Chief Secretary to the Government, after perusing all the papers and forthwith

decided to give premature retirement the plaintiff. The notice of premature retirement was given on 21.11.1983 by Bindu Gamit, Under Secretary

to the Government, Agriculture and Forest Department wherein it is written as under:

O R D E R

In exercise of the powers conferred by sub-clause (i) of clause (aa) of rule 161(1) of Bombay Civil Service Rules, 1959, the Government is

pleased to order the retirement of D.H.Oza, Deputy Conservator of Forests in GFC class-I from Government service in public interest on the

expiry of three months'' notice from the date of service of the order on him, in accordance with the Government circular, General Administration

Department No. CRA 1083-A date 25.10.1983 read with Government circular, General Administration Department No. CRA/1071/G dated

1.7.1971.

The respondent filed Regular Civil Suit no.282 of 1984 in the Court of the Joint Civil Judge (S.D.) and Chief Judicial Magistrate, Surat

challenging the notice of premature retirement for a declaration and permanent injunction. The Trial Judge framed as many as 10 issues, after going

through material and evidence held that the plaintiff has proved that Ms. Bindu Gamit, the then Under Secretary has no authority to send the

impugned notice. The trial court also held that the plaintiff has failed to show that Khanchandani and Karamchandani were hostile to him and at

their instance, premature retirement notice was issued to the plaintiff. The trial court also held that the plaintiff was not directly recruited as class-I

officer, hence he cannot be prematurely retired under the relevant rules. It has also been held by the trial court that before disposal of the

departmental inquiry pending against the respondent-plaintiff, the defendants cannot issue notice of premature retirement of the plaintiff. It has also

been held that the respondent-defendant was not given option for voluntary retirement under rule 161(aa)(ii). It is a condition precedent for the

Government to issue a confidential letter in which the plaintiff ought to have been informed that the Government has decided to retire him

prematurely and whether the plaintiff wants to retire voluntarily or not and in absence of such notice, the impugned notices exhs. 67 and 107 are

illegal. The suit was not bad for want of statutory notice u/s 80 of the Civil Procedure Code. The Court has jurisdiction to entertain the suit. It was

also held that the plaintiff failed to prove that the defendants have committed breach of injunction and thereby committed contempt of court. The

trial court also found that the decision taken by the Reviewing committee on 5.7.83 regarding premature retirement of the plaintiff suffers from

having no material, without any cogent reasons and arbitrariness. Hence, the impugned notice issued by the defendants is illegal, void, inoperative

and unconstitutional and against principles of natural justice. The plaintiff succeeded in proving that he should be deemed to be continued in service

from 5.7.84 onwards and he is entitled for all consequential reliefs, pay, admissible allowances etc.

Being aggrieved by the said judgment and decree dated 30.6.88 of the Joint Civil Judge (S.D.) and Chief Judicial Magistrate, Surat, the

appellant filed Regular Civil Appeal No. 62 of 1988 before the District Court, Surat. The lower appellate court framed seven points for

determination. The lower appellate court, by its judgment and order dated 30th April, 1994 dismissed the appeal of the Government confirming the

findings of the trial court. Hence, the appellant State of Gujarat has filed this Second Appeal in this court.

The lower appellate court affirmed the finding of the trial court that if the service of notice is already waived by the court at the time of the

institution of the suit, then such dispute can be entertained and that suit without notice u/s 80 of the CPC is maintainable. The lower appellate court

confirmed the finding of the trial court that by not giving option to the plaintiff for voluntary retirement under rule 161 (aa)(ii), which is a condition

precedent, the defendants have violated the rules therefore and thus, the impugned notice exh.67 is illegal and void. The appellate court also

confirmed the finding of the trial court that before disposal of the departmental inquiry against the plaintiff, the defendants cannnot issue notice of

premature retirement of the plaintiff and for that reason, the impugned notice is void ab initio. The lower appellate court also confirmed the finding

of the trial court on point nos. 2,3 and 5. The action for giving the impugned notice for premature retirement is illegal and the impugned notice is in

violation of rules framed by the Government itself. The lower appellate court also observed that the trial Judge has rightly held that the decision

taken by the Reviewing Committee on 5.7.1983 regarding premature retirement of the plaintiff is not proper, legal and valid as it was not based on

relevant material and decision suffers from having no material, without any cogent reasons and arbitrariness. Thus, the lower appellate court has

confirmed the judgment and decree of the trial court. Hence, this appeal.

In this appeal, the following substantial question of law has been raised.

In the facts and circumstances of the case, whether the courts below have committed substantial error of law in interpretation and application of

Rule-161 of the Bombay Civil Service Rules, in view of the judgment in case of Baikuntha Nath Das and another Vs. Chief District Medical

Officer, Baripada and another, followed by the judgment delivered by Division Bench of this Court, consisting of M/s. Justice A.P.Ravani and

Y.B.Bhatt, JJ in Special Civil Application No. 935 of 1988 ?

In the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , the Supreme Court has laid down

guidelines regarding premature retirement. Para-32 of the said judgment is reproduced as under:

The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant

compulsorily. The order is passed on the subjective satisfaction of the Government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is

excluded altogether. While the High Court or this court would not examine the matter as an appellate Court, they may interfere if they are satisfied

that the order is passed (a) malafide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would

form the requisite opinion on the given material in short, if it is found to be a perverse order.

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in

the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would

naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher

post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merits (selection) and not upon

seniority.

(v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse

remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

Interference is permissible only on grounds mentioned in

(iii) above. This object has been discussed in paras 29 to 31 above.

The Reviewing Committee has recommended the name of the petitioner for premature retirement on 5.7.1983. The recommendation of the Review

Committee reads as under:

In the case of Shri D.H.Oza, the Committee felt that his performance over the last 10 years was continuously poor. In the year 1973 apart from

the various adverse remarks recorded by the Reporting Officer, the Reviewing Officer stated""extremely individualistic and selfish. Lacks in

discipline. Overlooks rules and regulations. Tactless. He was warned by Government for undignified behaviour during the year. Grading : Below

average"".In the year 1974-75, apart from the innumerable adverse remarks by the Reporting Officer the Reviewing Officer graded him ""below

average"". In the year 1975-76, among the adverse remarks were statements like "" Lacks budgetary control. Indigent, Uncourteous and

indisciplined in correspondence with higher officer. Unfit for holding charge at territorial divisions. Refractory to administrative and fiscal discipline.

Remains in constant conflict with fellow officers and even with his superiors and makes working difficult"". He was again graded: ""Below Average"".

In 1976-77, among the adverse remarks were commenced like "" He does not adhere to tour progrmmes and tries to camp in Bhavnagar often. He

has not been able to get details for working plans preparation from various divisions"". The Reviewing Officer added ""Tactless and adamant. He has

shown little improvement during the year"". In 1977-78 apart from the continued complaint of camping in Bhavnagar without doing work, the

Reporting Officer has added, ""scant regard for instructions and orders from his officers."" The Reviewing Officer for this year has stated, ""An

intelligent but a misguided officer"". In 1978-79 the Reviewing Officer found him ""Not very cordial, very rude, in his language and while

communicating with superiors, biased etc. In 1979-80, Reviewing Officer has found him ""rather irrelevant, in his reporting and argumentative"". In

1980-81 the Reviewing Officer has stated, ""was reprimanded for delay and non-compliance of instructions"". Other remarks included ""appears to

be slow in accepting responsibility, all decisions are not sound"". In 1981-82 the Reporting Officer has found, ""his thinking is not clear. Not ready

for responsibility. Full of irrelevant informations and tendency to over-utilise powers without proper authority."" In 1982-83 the Reporting Officer

has found him ""some time evasive, his subordinates rebelled against him cannot organise, resorts to devious methods at times, anti social and

cannot be relied either for work or integrity."" The Reviewing Officer has accepted these remarks. It can, therefore, be seen that without an

exception Shri Oza has received extremely adverse remarks from a number of different senior Reporting and Reviewing Officers. There are also

departmental inquiries pending against him. In view of his consistently poor performance the committee recommends that he may prematurely retire

and not continued beyond 50 years.

The learned A.G.P. for the appellant contended that the impugned notice was issued by the Under Secretary who cannot be said to have no

authority to issue such a notice. The courts below have committed an error in holding that the notice issued by the Under Secretary is illegal and

not maintainable in the eyes of law as the Under Secretary has no authority to issue such notice.

I have carefully considered the arguments advanced by the learned AGP and respondent, party-in-person, and perused the relevant papers on

record.

This is a matter in which the Review Committee has recommended for the premature retirement of the respondent-plaintiff on the basis of the

reviewing the performance of the respondent continuously for the last 10 years in which the performance of the respondent-plaintiff for the last 10

years was found to be poor. The conclusions arrived at by the Reviewing Committee was forwarded to the Government. The Chief Secretary to

the Government perused the papers and after verifying the record of the respondent-plaintiff it was decided to retire the respondent-plaintiff

prematurely. Thus, the matter was considered by the Secretary to the State Government (Administrative Head of the State). Thereafter, the matter

was forwarded to the Under Secretary to issue the notice. As such, the Under Secretary has an authority to communicate the decision of the State

Government to the respondent-plaintiff. Thus, it cannot be said that the impugned notice was issued by the Under Secretary who has no authority.

The matter was to be considered and directed by the State Government and that has been done. The Under Secretary is the communicating

agency only. Therefore, the impugned notice is not illegal or without authority of law.

The respondent-plaintiff who appears as as party in person contended that the proposal for retirement should have been initiated by the

appointing authority as per Rule 161 of the Bombay Civil Service Rules. I have considered the arguments of the respondent-plaintiff. Rule 161(1)

(aa)(i) of the Bombay Civil Service Rules requires that the appointing authority, if he is of the opinion that it is in the public interest so to do, has the

absolute right to retire any Government servant to whom clause (a) applies by giving him a notice of not less than three months in writing or three

months pay and allowances in lieu of such notice. Even the proposal for premature retirement was made by Mr. M.S.Shah. Mr. M.S.Shah who is

not an appointing authority and as an appointing authority is required to satisfy that a particular Government servant should be required to be

retired prematurely in the public interest. In the present case, the Government has satisfied itself and formed an opinion on the basis of the report of

reviewing committee and other materials in support thereof that the respondent-plaintiff should be required to be retired prematurely in the public

interest. So, the notice on the basis of which the proposal by a person not being an appointing authority was issued after forming the opinion by the

Government that the respondent-plaintiff is required to be retired prematurely is not illegal on this ground and the contention of the respondent-

plaintiff is not sustainable in the eye of law.

The next contention of the learned AGP for the appellant State is that the courts below have recorded erroneous findings that the respondent-

plaintiff was not a directly recruit ed class-I officer, hence Rule 161(1)(aa)(i) cannot come into play and he cannot be prematurely retired under the

relevant Rules. I have considered carefully the contention of the learned AGP that the courts below have committed an error on this aspect also

that the respondent-plaintiff was not directly recruited as Class-I officer, hence the relevant rule would not be applicable. In fact, the rule requires

that if he is in class-I or class-II service or post or in any unclasified gazetted post, the age limit for the purpose of direct recruitment to which is

below 35 years, on or after the date on which he attains the age of 50 years, any Government servant to whom clause (a) applies may by giving

notice of not less than three months, in writing to the Appointing Authority retire from service after he has attained the age of 50 years, if he is in

Class I or Class II service post or in any unclassifed gazetted post, the age limit for the purpose of recruitment to which is below 35 years and in

other case, after hehas attained the age of 55 years. Admittedly, the respondent-plaintiff was appointed directly as class-II service. A person of

class-I and class-II service for whom the age limit for the purpose of direct recruitment is prescribed as below 35 years and the respondent-

plaintiff was appointed as class-II officer for which the age below 35 years was prescribed. As such, the rules would be applicable and the courts

below have committed an error on the face of the record and against statutory provisions of rules and those findings of the lower courts in this

respect cannot stand affirmed by this Court.

The next contention of the learned AGP is that the courts below have committed an error in holding that when a departmental inquiry is

pending against the respondent-plaintiff, the appellant-defendant cannot issue notice of premature retirement of the plaintiff. I have considered this

contention of the learned AGP for the appellant. I come to the conclusion that the courts below have committed an error on the face of the record

in this respect also, inasmuch as once the Government forms an opini on that a particular person should not be retained in service, he can be retired

after taking into consideration last 10 years'' performance. It is true that the proviso to clause (a)(aa) of Rule 161(1) gives discretion to appointing

authority to withhold permission to retire to a Government servant who is under suspension, or against whom departmental proceedings are

pending, but this power is discretionary, not mandatory or obligatory. In the present case also, the Review Committee has considered last 10

years'' performance of the respondent-plaintiff and recommended for premature retirement of the respondent-plaintiff. That recommendation was

forwarded to the Secretary to the Government Secretary to the Government who considered the same and formed an opinion that the respondent

should be retired prematurely as his performance for the last 10 years was poor and not satisfactory. For the consideration of this aspect, the

authorities are required to consider the confidential reports regarding performance of the respondent-plaintiff. In the instant case, the Review

Committee, after considering the performance of last 10 years has come to the conclusion that that respondent-plaintiff should not be retained after

completion of 50 years of age. Hence, the recommendation was made for premature retirement. Adverse remarks and pendency of a departmental

inquiry have also been considered. If such adverse remarks have been considered by the Review Committee and on the basis of those adverse

remarks and pendency of the departmental inquiry, the State Government forms an opinion that the person concerned should be retired

prematurely, the notice for premature retirement on the basis of satisfaction of the Government cannot be said illegal at all. Thus, pendency of any

deparmental inquiry does not affect the recommendation of the Review Committee and/or forming of an opinion by the appointing authority or by

the State Government.

As laid down by the Apex Court in the case of Baikuntha Nath Das and another vs. Chief District Medical Officer, Baripada and another (Supra),

the Government or Review Committee, as the case may be, is required to consider the entire record of service before taking a decision in the

matter and performance during the latter years. The record will include the entries in the confidential reports and character rolls, both favourable

and adverse. As such, pendency of the departmental inquiry does not affect forming of the opinion by the State Government or by the appointing

authority or the recommendation of the Reviewing authority.

On the other hand, the respondent-plaintiff contended that the authorities have not considered favourable remarks made in his favour. But from

the perusal of the report of the Reviewing Committee, it appears that all the good or adverse remarks made in favour of the plaintiff or against the

plaintiff have been considered. As such, it cannot be said that the authorities have not considered good remarks.

The next contention of the learned AGP for the appellant-State is that both the courts below have considered that the respondent-defendant

was not given an option for voluntary retirement under Rule 161 (aa)(ii) of the BCSRs, as also required by some circular issued by the department

at exh. 71. In this connection, I have considered the guidelines laid down by the Apex Court in the case of Baikuntha Nath Das and another vs.

Chief District Medical Officer, Baripada and another (Supra), in which it has been mentioned that the principles of natural justice have no place in

the context of order of compulsory retirement. In the present case, for premature retirement, the Government is not required to give option for

voluntary retirement as principles of natural justice are not applicable in the case of premature retirement, though there is a circular in this respect

which requires the Government to give an option to the person concerned. According to the learned AGP, the Government has a discretion to give

an option to the person concerned. If such option is not given by the Government in violation of the departmental circular, it would not vitiate the

impugned notice/order. According to him, rules of natural justice are not applicable in the case of premature retirement or compulsory retirement.

As such, in my opinion, not giving an opportunity for voluntary retirement to the person concerned will not vitiate the impugned order of retirement,

more particularly where there is sufficient material for requiring the person concerned to retire premturely. In the present case, in my opinion, there

is sufficient material to arrive at a conclusion tht the person concerned should be retir ed prematurely and the option for voluntary retirement under

rule 161(aa)(ii) is not required under law to be given before issuing the impugned notice for premature retirement.

It is further contended by the learned AGP that the findings recorded by the courts below are erroneous to the effect that the decision of the

Reviewing authority taken on 5.7.83 regarding premature retirement of the plaintiff suffers from having no material, without any cogent reasons and

arbitrary. Hence, the impugned notice issued by the appellant-defendant is illegal, void, inoperative, unconstitutional and against principles of

natural justice. I have considered the contention of the learned AGP. The report of the Reviewing Committee clearly shows that there is sufficient

and substantial material on record on the basis of the last 10 years performance of the respondent-plaintiff for the recommendation to retire the

plaintiff prematurely.

The respondent-plaintiff contended that the proposal made by Mr M.S.Khanchandani is a manipulated report. The adverse remarks were also

manipulated by him. There is nothing on record to show that there was any advrse remarks in the confidential remarks. We cannot go behind the

report of the Reviewing committee which is based on the performance of the plaintiff for the last 10 years and there is nothing on record to show

that adverse remarks mentioned and considered by the reviewing authority were not in the confidential report of the respondent-plaintiff and the

observations and findings of the courts below that the report of the Reviewing Committee suffers from having no material, without any cogent

reasons and arbitrariness, are not sustainable in the eye of law.

The learned AGP also pointed out that the courts below have recorded a finding that the plaintiff has succeeded in proving that he should be

deemed to be in continuous service from 5.7.84 onwards and he is also entitled for all consequential reliefs, pay, admissible allowances etc. In this

respect, if the report of the Reviewing Committee is accepted and it does not suffer from any illegality and the opinion formed by the State

Government/Appointing authority for retiring the respondent-plaintiff prematurely is good, then the respondent-plaintiff cannot be deemed to be in

continuous service after 5.7.1984. In this respect, the findings of the courts below are not sustainable in the eye of law.

In the present case, the respondent-plaintiff made an attempt to submit that Mr. Khanchandani and Mr. S.K.Sinha were enimical to him and

were behind him in getting the impugned order passed against him. In this respect, the trial court has recorded a finding that the respondent-plaintiff

has failed to show that Mr. Khanchandani and Mr. Karamchandani were hostile to him and at their instance, the impugned premature retirement

notice was issued to the plaintiff. This finding has not been disturbed by the lower appellate court. As such, this court cannot re-assess and re-

appreciate the evidence on record regarding enmity between the respondent-plaintiff on one hand and Mr. Karamchandani and Mr. Khanchandani

on the other hand. In the Second Appeal, it would not be possible for this Court to re-appreciate and re-assess the evidence on record, where

findings of fact have already been recorded by the courts below.

Thus, in my opinion, it cannot be accepted that the Reviewing Authority has recommended the plaintiff''s premature retirement and the

Government has formed the opinion for the same on the basis of the enmity or at the instance of Mr. Karamchandani or Mr. Khanchandani.

The lower appellate court has observed that the defendants have produced confidential reports at exh. 295, that is, in respect of adverse

remarks by the respondent-plaintiff from 1.1.72 to 31.3.1983. By a letter dated 11.2.75, the adverse remarks from 1.1.1971 to 31.12.1972 were

communicated to the plaintiff. The remarks were communicated to the respondent-plaintiff after about 4 years. In fact, it is about three years. The

adverse remarks of 1.1.73 to 17.4.73 were communicated to the plaintiff on 11.2.75 and adverse remarks of the period from 18.5.73 to

31.12.1973 were communicated to the plaintiff on 11.2.75 after about two years. Actually this is also about one year and not two years. The

Review Committee has relied on the adverse remarks of the plaintiff for the year 1973 and those remarks were communicated on 11.2.75 after

about two years. Actually, it is about one year and not two years.

The lower appellate court also relied on the resolution dated 7.5.1979 wherein it is stated that the communication of adverse remarks is

required to be made to the Government servant within six weeks without fail. The adverse remarks of 1973 were communicated after two years.

This is not correct, that the remarks were communicated after two years. It is about one year. Thus, the appellant defendant committed breach of

the circular exh. 119. The Review Committee was not authorised to take into consideration the adverse remarks of 1973 at the time of taking the

decision of premature retirement of the appellant-plaintiff. Even then, the Review Committee has considered the said adverse remarks of 1973.

The adverse remarks of 1974-75 have been conveyed to the respondent-plaintiff by a letter dated 15.5.75. The lower appellate court made an

observation that the confidential remarks of the plaintiff were written in 1976. If the confidential remarks for the period from 19.5.74 to 31.3.75

was written by the reporting officer in 1976, they cannot be conveyed to the respondent-plaintiff on 19.5.75 as on 19.5.75 there was no existence

of confidential report of the plaintiff for the year 1974-75. The confidential remarks for the year 1974-75 according to the lower appellate court

gives a reasonable shadow of doubt for its existence and then remarks of 1974-75 cannot be considered, eventhough the Review Committee has

considered the said remarks. The adverse remarks for the period from 1.4.75 to 31.3.76 were communicat ed to the respondent-plaintiff by a

letter dated 31.1.1977, after about 10 months of the prescribed period which also communicates that the reporting officer has committed breach

of the circular exh.119. According to that circular, the adverse remarks should be communicated to the persons concerned within six weeks

without fail. Thus, the adverse remarks for the period from 1.4.76 to 31.3.77 were communicated to the respondent plaintiff on 14.6.77. Thus,

there was a delay in communicating the said remarks to the respondent-plaintiff and breach of circular exh.119. The adverse remarks of the

plaintiff for the period from 1.4.77 to 7.12.77 and from 8.12.77 to 31.3.78 were communicated to the plaintiff by letter dated 3.8.78. Thus, the

remarks were communicated to the plaintiff at a very later stage. The adverse remarks for the period from 1.4.78 to 31.3.79 were communicated

to the plaintiff on 11.8.79. Thus, the Competent Authority has committed breach of the circular exh.119. The communication of the adverse

remarks for the period from 1.4.79 to 31.3.80 was also made on 7.7.80. Thus, there was a delay of 3 to 4 months in communicating the said

remarks to the plaintiff. The adverse remarks for the period from 1.4.80 to 31.3.81 were communicated to the plaintiff on 13.7.81. Thus, there

was a delay of about three months in communicating the said remarks. The adverse remarks for the period from 1.4.81 to 31.3.82 were

communicated to the plaintiff on 13.7.81. Thus, there was a delay of about three months in communicating said remarks. The adverse remarks for

the period from 1.4.81 to 31.3.82 were communicated to the plaintiff by a letter dated 31.5.82. Thus, there was a delay of about two months.

Thus, the lower appellate court has considered the adverse remarks made against the respondent-plaintiff to be illegal, not to be relied upon by the

Reviewing Committee for recommendation to retire the plaintiff prematurely, mainly on the ground that these adverse remarks were communicated

to the respondent-plaintiff after period prescribed therefore by the circular exh.119. In some of the cases, this Court has held that the circular

prescribing time of six weeks for communicating adverse remarks to the person concerned, is only directory and not mandatry in the eye of law.

As such, it cannot be said that the adverse remarks made against the respondent-plaintiff were not in existence or cannot be considered for

premature retirement only on the ground that they were communicated after prescribed period of six weeks as mentioned in the circular exh.119.

Secondly, the Supreme Court in the case of Baikuntha Nath Das and anot her vs. Chief District Medical Officer, Baripada and another (Supra)

has held that the order of compulsory retirement is not liable to be quashed by the court merely on the ground that while passing uncommunicated

adverse remarks were also taken into consideration, meaning thereby that the Reviewing Authority can consider adverse remarks which have not

been communicated to the Government servant, meaning thereby that the Reviewing Authority can consider and rely on the uncommunicated

adverse remarks. In this connection, the respondent-plaintiff contended that this Rule laid down by the Supreme Court would not be applicable to

him on the ground that the observation has been made in Orissa case, whereas the plaintiff is a resident of Gujarat state where communication of

adverse remarks is required under Rules. In my opinion, the contention of the respondent-plaintiff is not sustainable in view of the fact that the

Apex Court has considered the entire facts and circumstances for relying on and passing the order of premature retirement. The material fact is

only that there must be a subjective satisfaction of the authority concerned and there must be consideration of entire record of service of the person

concerned before passing the impugned notice. In the present case, the entire record in respect of the performance of the respondent-plaintiff for a

period of last 10 years has been considered by the Reviewing Committee as well as by the State/Appointing authority, on the basis of the

subjective satisfaction or the consideration of the performance of the respondent-plaintiff for the last 10 years would be sufficient to pass the

impugned notice/order of premature retirement. And it cannot be said thast there is no material on record to arrive at the conclusion for premature

retirement.

The impugned notice/order can be challenged only on the ground of malafides or if it is based on no evidence or arbitrariness in the sens e that

no reasonable person would form requisite opinion on the given material. So far as malafides is concerned, the respondent-plaintiff has failed to

prove any enmity behind passing the impugned notice/order against him, meaning thereby that there was no enmity. As such, the order can not be

said to be malafide. Secondly, it cannot be said that it is based on no evidence. The Reviewing Authority has discussed the entire material of last

10 years regarding performance of the responent-plaintiff for the last 10 years. As such, it cannot be said tht there is no material on record. So far

as arbitrariness is concerned, as there is nothing on record to show that the decision taken by the Government for retiring the respondent-plaintiff

prematurely is arbitrary, as no reasonable person would form the requisite opinion.

Therefore, the notice is based on satisfactory and subjective satisfaction of the Government/Appointing authority. The findings recorded by the

courts below are contrary to the principles laid down by the Apex Court in this regard. As such, the learned AGP has been able to prove that the

case involves a substantial question of law regarding interpretation of application of rule 161 of Bombay Civil Service Rules in view of the judgment

in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, followed by the judgment delivered by

the Division Bench of this Court, consisting of M/s. Justices A.P.Ravani and Y.B.Bhatt, JJ in Special Civil Application No. 935 of 1988.

Considering the entire material on record and facts and circumstances of the case, this appeal is allowed. The judgment and decree dated

30.4.1994 in Regular Civil Appeal No. 62 of 1988 passed by the learned Assistant Judge, Surat and the judgment and decree dated 30.6.88 in

Regular Civil Suit No.282 of 1984 passed by the Joint Civil Judge (S.D.), and Chief Judicial Magistrate, Surat is hereby quashed and set aside

and Regular civil suit no. 282 of 1984 stands dismissed. Decree be drawn accordingly. Rule made absolute with no order as to costs.