Union of India vs Ram Sewak Pathak

Union of India and its officers have directed this Letters patent appeal against the judgment and order of a learned Single Judge who allowed the

Respondent's writ petition directed against the order of compulsory retirement.

The order of compulsory retirement was passed in exercise of powers under FR 56 (j) read with Subclause (1) (b) of Rule 48 of the Central

Civil Service (Pension) Rules, 1972. It was challenged on the grounds :

(i) The respondent was not a class I or class II officer & therefore Fundamental Rule 56 (j) was not attracted;

(ii) that the respondent's case was never objectively considered by the Committee constituted to make recommendations for compulsory

retirement;

(iii) The respondent's record of service was unblemished and therefore his compulsory retirement could not be said to be in public interest; and

(iv) it was arbitrary

The writ petition was contested on behalf of the appellants, but their contest failed. The learned Single Judge held that the respondent was

neither a class I nor a class II official and therefore Fundamental Rule 56 (i) was cot attracted. The learned Single Judge further held that Rule 48

of 1972 Rules would not be available as it was not in force on the date the respondent entered into service. In view of the invocation of two rules

in the retirement notice, the learned Single judge concluded that there was confusion in the mind of the authority issuing the notice and there was

nonapplication of mind. In the result be held that the notice of retirement was invalid. The learned Single Judge has not made any reference to the

service '.record of the respondent.

In appeal the learned counsel for the appellant has not disputed the inapplicability of FR 56 to the respondent but has submitted that Rule 48

was fully applicable and the notice of retirement would not be invalid by mere mention of an inapplicable provision. It is also the submission of the

learned counsel that no inference of nonapplication of mind could be drawn by the mere invocation of two rules, one applicable and the other

inapplicable in the retirement notice.

We have heard learned counsel for the parties and we have perused the record of respondent's service which was produced by learned counsel

for the Union of India and we are of the opinion that the judgment of the learned Single Judge cannot be sustained.

It has been held by their Lordships of the Supreme Court in Roshan Lal Tandon vs. U.O.I, AIR 1967 S.C 1889 that the State is competent to

alter the service conditions of a government servant. Accordingly 1972 Rules would not be inapplicable to the respondent merely on the ground

that they were enforced subsequent to the respondent's entry in service. Neither it is the case of the respondent nor it has been held by the learned

Single Judge that there is any provision in the rule express or implied, which excludes the applicability of the rule to those government servants who

entered service prior to the enforcement of the rule. Accordingly the finding of the learned Single Judge on the applicability of 1972 Rules to the

respondent cannot be sustained.

Rule 48 of 1972 Rules reads as follows :

Retirement on completion of 30 years' Qualifying service.

(i) At any time after a Government servant has completed thirty years' qualifying service

(a) he may retire from service, or

(b) he may be required by the appointing authority to retire in the public interest and in the case of such retirement the Government servant shall be

entitled to a retiring pension :

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;

and

(b) the appointing authority may also 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 allowance in lieu of such notice.

Under the above Rule the right to retire a Government servant arises after the latter has put in qualifying service of thirty years.' Unlike FR 56 (j),

this rate does not make any reference to the age after which the compulsory retirement may be effected. It refers only to qualifying service of thirty

years. It is not the case of the respondent that he had not completed thirty years service. Therefore the appointing authority had the tight under this

provision, to retire the respondent.

It is settled law that where power to take action exists under some provision of a statute or rule, the action taken will not be invalid merely

because some wrong provision is mentioned in the order. Accordingly the impugned notice of retirement cannot be invalidated on the ground of

invocation of FR 55 which was admittedly not applicable.

We are also unable to sustain the finding of nonapplication of mind also. The finding has been recorded on the mere fact that an inapplicable rule

was invoked. In the retirement notice it is mentioned"" in exercise of the power conferred by clauses (j) of Rule 56 of the Fundamental Rules read in

conjunction with sub Rule 1 (b) of Rule 48 of the Central Civil Services (Pension) Rules, 1972"" (emphasis supplied). From the emphasised portion

it appear that the authority was of the opinion that the power under Rule 48 (I) (b) was to be exercised alongwith FR 56 (j). This was obviously a

wrong notion as Rule 48 nowhere refers to FR 56 (j). The rule confers power which is exercisable independently of Rule 56. On account of mere

wrong application of the legal position, it cannot be inferred that the authority did not apply its mind to the facts on the basis of which opinion was

to be formed whether retirement of the respondent was required in public interest.

As already indicated the learned counsel for the appellant placed before us the service record of the respondent. We have perused the same

and we find that the respondents claim that his record of service is unblemished is not correct. The said record shows as follows :

(1) during the period 1.1.1988 to 31.12.1988 he was given three warnings and was described as below average;

(2) In the period 10.6.1989 to 31.12.1989 it was stated that he may not be deployed on duties involving severe physical and mental strain; after

this observation he was assessed as good;

(3) For the period 1.1.1990 to 31.12.1990 and 1.1.1991 to 31.12.1991 he was described as good.

(4) For the period 1.1.1992 to 31.12.1992 his performance was adjudged as 'average' It was also observed that he was an indiscrete consumer

of liquor and his medical category was low.

These entries are for the period immediately preceding his retirement. They cover a period of about five years. The entries show that his

performance during the entire period has not been consistently good and his physical and mental health was on decline and he was becoming

incapable of performing duties involving severe physical and mental strain. This state of health may have been brought about by excessive

consumption of liquor. In this state of affairs it is possible to acquire the satisfaction that it is in public interest to retire a government servant.

Exercise of power in the present case cannot therefore be said to be arbitrary.

The law on the subject of compulsory retirement has been laid down by their Lordships of the Supreme Court in the recent case of

Baikuntbaratha Das vs. Chief District Medical Officer (1992) 2 SCC. 299. Their Lordships have considered a large number of previous decisions

of the Supreme Court and thereafter the proposition of law have been summed up in paragraph 34 of the report as follows :

The following principles emerge from the above discussion :

(i) An order of compulsory retirement is not a punishment. It implies no stigma or 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 it they are satisfied

that the order is passed (a) malafide or (b) that it is bassed 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 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 latter 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 merit (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 permissibly only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.

In view of the emphasised portion in the above mentioned paragraph, it is apparent that the order of compulsory retirement is passed on the

subjective satisfaction of the competent authority and there is no scope for interference by the court where the subjective satisfaction is based on

relevant material on record. The same view has been reiterated in Union of India vs. Dulal Dutt (1993) 2 Supreme Court Cases 179. We have

indicated hereinabove the service record of the respondent. That was the relevant material to be considered. The order of compulsory retirement is

therefore based on material on record. It cannot be said to be based on no material.

The learned counsel for the respondent however, has submitted that it appears from the material on record that entries for the last five years

only were considered by the Review Committee and rot the entire service record of the respondent end therefore the impugned order of

compulsory retirement is hit by the ivth proposition laid down by their Lordships. After observing that the Review Committee shall consider the

entire record of service before taking a decision in. the matter, it has also been observed by their Lordships that more importance can be given to

the record and performance during the latter years, If the performance of latter years shows that the respondent's medical category has gone low

and on account of consumption of liquor it is not desirable to deploy him on duties involving severe physical and mental strain, the order of

compulsory retirement cannot in our opinion, be invalidated merely on the ground that earlier the respondent's health was good. In our opinion their

Lordships did not intend to lay down that an order of compulsory retirement justifiable on the record of latter years will be invalid merely because

in the remote past the respondent was an efficient official. AH that their Lordships have laid down is that In taking a decision on compulsory

retirement of a government servant his entire record of service can be considered. This observation appears to have been made to counteract the

observations contained in certain authorities that the record of service prior to certain years, say five years or ten years, could not be considered.

In view of the above the appeal is allowed and the judgment and order of the learned Single Judge is hereby set aside. The respondent's writ

petition is dismissed but without any order as to costs.