Central Administrative Tribunal - Ahmedabad
A.M. Chauhan vs Union Of India (Uoi) And Ors. on 8 August, 2005
Equivalent citations: 2006(92)SLJ303(CAT)
JUDGMENT Shankar Prasad, Member (A)
1. Aggrieved by the order dated 10.04.2003 of Union Govt. compulsory retiring him from service and notification dated 05.05.2003 issued by the State Govt. pursuant thereto, the applicant has preferred the present O.A. He has sought for the quashing of both these orders.
2. The applicant was appointed to the IPS in 1981 and was promoted to the Senior Time Scale in November, 1985.
The case of the applicant in brief is that it is obligatory for the Govt. of India to review the performance of an officer on attaining the age of 50 years and if the officer is continued in service beyond that age the next review can be made only after 5 years at the age of 55 years. Hence, this decision could have been taken only in August 2003. The applicant has been paid three months subsistence allowance and not three months pay. The order, therefore, is bad. The notification issued by State Govt. is stigmatic.
The applicant has also referred to his ACRs chargesheet, the case of disproportionate asset and a warning issued to him. It is contended that they cumulatively do not warrant his compulsory retirement from service.
The applicant in his rejoinder to the reply of State Govt. has stated as under:
(i) The non payment of three months pay and superannuation gratuity or pension as required under the rules vitiates the order. The retirement is, therefore, illegal and void.
(ii) The Review Committee is required to meet 6 months in advance of the date so that the decision is taken before the officer completes 50 years of age or 30 years of service as per GOI instruction. This has not done. The Committee never met in 1998, 1999, 2000. It met once in 2001 and then in another year to remove Mr. N.G. Palas. The applicant is under suspension since 15.7.97 and the stay of High Court in disproportionate asset case was pending. If the Committee had met in time may be the decision would have been different. Even though the Govt. of India instructions require the Committee to go through the entire service record the Committee has considered his ACRS only and not the appreciations earned by him. It would be clear from his ACRS that there is no steep fall in his performance. Some of his representations to the adverse ACRs have not been acknowledged. The Gujarat Govt. had scrapped the grading system regarding recording of ACR. The committee has nowhere said that he is a dead wood or that he should be retired in public interest. The findings are not sustainable. The GOI has taken a decision two years after the Review Committee met. This delay is not explained.
(iii) The position regarding various cases referred to in the reply has been indicated. It is stated that as per the decision in Bhajan Lal's case he ought to have been heard before the Registration of D.A. case.
Apart from these points the following further points have also been raised in the rejoinder to GOI reply.
(i) It is reliably learnt by the applicant that the respondents felt that the applicant was behind the anonymous/pseudonymous applications against the Joint Secretary Mr. Nityanandan and other police officials and hence the review meeting was held with a prejudiced mind. Mr. N.K. Palas was also retired on similar suspicion.
(ii) He was not taken back in service when the High Court granted a stay in the disproportionate asset case even though the same was the primary reason of suspension.
(iii) GOI have not explained the delay in taking the decision.
(iv) The provision "at any time thereafter" in Rule 16(3) of AIS (DCRB) Rules confers an uncanalised power and should be struck down.
3. The State Govt. in their reply have stated that the action has been taken in accordance with provisions of Rule 16(3) of A.I.S. (DCRB) Rules and the guidelines issued by the Government of India regarding premature retirement of All India Service Officers. They have furnished information regarding ACRs, departmental proceeding, criminal cases and the award of censure.
It has been asserted that the review committee has acted strictly in accordance with the guidelines on the subject. The minutes of the Review Committee have been enclosed. As the applicant was under suspension only the suspension allowance has been paid, the balance amount shall be paid on the conclusion of the departmental enquiry and the final orders of Govt. of India thereon.
4. The Central Govt. in their reply have stated that the disciplinary proceedings against the applicant and the criminal cases pending against him are incidental and not the basis of his premature retirement. Except for two years in service the applicant has earned adverse/below average/average gradings. His overall performance has been unsatisfactory and not conforming to the highest standards expected of an All India Service Officer. It was also found that there was ample evidence of deterioration in his efficiency and steep fall in competence and effectiveness. He had become a 'dead wood' and his further continuation was considered to be of no use in the case of public interest. The Union Govt. has accordingly after a careful consideration passed an order for compulsory retirement.
5. We have heard the party in person and learned Counsel for the respondents.
6. The following table shows the position regarding communication of adverse remarks/advisory remarks, the representation filed if any by the applicant decision thereon and the results of representation/memorial/litigation in respect to the remarks considered by the Review Committee as per the pleadings on record.
Year Communi Represen Decision Memorial Further Litigation if Remarks
cation tation any before as
recorded
C.A.T. High by
Court committee
________________________________________________________________________________ 1 2 3 4 5 6 7 8 ________________________________________________________________________________ 1986-87 None Below Average 1987-88 Below Average average in one part but not communi cated 1988-89 Average 1990-91 Adverse Yes Adverse vide letter dated 4.10.2001 for the Average remarks expunged period from 1.4.90 to 4.11.90 and by letter dated 6.11.2000 for the remaining period.
___________________________________
1991-92 Adverse Yes Rejected OA/873/98 SCA11277/
dismissed 2003
on 20.6.02 dismissed
on 8.9.03
1992-93 Advisory Average
1993-94 Advisory Average
1995-96 Advisory/ Yes Adverse Average
Adverse expunged
in 1999
1996-97 Advisory/ Yes Rejected Rejected O.A.463/ SCA 12576/
Adverse 2000 2004 admitted
dismissed as per
on 26.9.01 applicant not.
Order not filed
The statement of State Govt. about ACR shows that a note about integrity was recorded in the years 1984-85,1987-88 as doubtful with respect to the note attached, and in the years 1992-93, 1993-94 integrity note attached.
The applicant has brought on record his two representation against adverse ACR for 1984-85 including the one submitted against remarks on integrity. The applicant was then working as ASP Siddhpur in Patan district. This representation refers to the remarks recorded by his DSP, Shri P.P. Pandey perhaps because of the application made by one Mr. Biharilal Oza in Siddhpur. P.S. Case 170/84 under Section 302 Indian Penal Code and stating that he was not associated with the enquiry. It also comments on the role of a PSI close to the DSP.
7. The position relating to the various charge sheets issued to the applicant is as under:
(a) Chargesheet dated 04.07.94 mentions seven articles of charge including levelling of allegations against senior officers of ACB, the additional director and others, hushing up evidence/non arrest of accused in cases under investigation, inaction on indisciplined acts of subordinates (para 8 of reply). The applicant had filed O.A. 97/98 challenging this chargesheet. The said O.A. was dismissed vide orders dated 28.02.03 both on merits as well as by rejecting the ground of limitation. The interim relief granted on 9.3.98 was vacated. It has been stated by the applicant that enquiry is stayed by Hon'ble High Court in SCA 6030/04.
(b) The State Govt. in para 5 of their reply have stated that one Shri Biharilal K. Oza had complained to the Anti Corruption Bureau on 23.01.85 citing three specific cases (i) Taking of bribe in Brahmanwada murder case (Sidhpur PS case 170/84) (ii) Demanding of bribe in Daswada murder case (iii) Taking of bribe in a hotel licence case. State Govt. granted permission for conducting an open enquiry in accordance with the policy enunciated in Gujarat Govt. circular dated 25.03.68. After considering the ACB report Gujarat Vigilance Commission has recommended departmental enquiry. It appears from the submission of Govt. Counsel in OA 140/2001 that after the receipt of said permission the ACB conducted investigation from 1985 to 1993 and submitted its report to Vigilance Commission on 14.10.93 against the applicant as well as other officers. The Vigilance Commission in its letter dated 29.06.94 recommended major penalty proceedings against the applicant and made recommendation against other officers. Govt. asked Vigilance Commission to reconsider its recommendations on some points and with regard to some co-accused. Vigilance Commission recommended its earlier recommendations vide its letter dated 5.12.97. According two chargesheets (sic) have been issued to the applicant (para 5 & 8 of reply). The position in this regard is as under:
Chargesheet Subject Remarks
(a) Dated 13.01.1999 Bribe in Siddhpur OA 65/01 for quashing of chargesheet P.S. Case 170/84 on ground of delay dismissed on 3.2.04. As per the applicant's assertion enquiry stayed as per orders of Hon'ble High Court in SCA 1446/04. Copy of order not filed.
(b) Dated 15.03.1999 Grade misconduct OA 141/02 for quashing of chargesheet in collusion with on the ground of delay dismissed on 19.07.02.
PSI in Kakosi SCA 2646/03 is pending. Enquiry stayed
Station CR 100/84 as per the applicant. Copy of order
not filed.
(c) Dated 15.03.1999 Tampering with Penalty of withholding of two
records in Hotel increments for two years without
license case future effect imposed vide Order
dated 14.10.02. Memorial pending.
8. It appears from the submission of Govt. Counsel in OA 140/2001 that prior to reiterating its recommendations regarding some of the charges and allegations against a co-accused the Vigilance Commission had also recommended registering of a criminal case against the applicant for possession of disproportionate assets. The said recommendations were accepted. The applicant was suspended, and a regular case was instituted on 24.07.97. It is stated by the respondents in para 6 of the reply that the Hon'ble High Court initially granted stay for the investigation but subsequently the stay has been vacated on 29.06.2002. As per the latest report of ACB the applicant is neither cooperating with the enquiry nor is explaining his assets. The applicant in his rejoinder has stated that he should have been heard before registry in the case and that the case is still under investigation.
9. It appears from para 6.4 of O.A., para 7 of reply, that in his defence statement dated 8.12.90 to Memorandum dated 9.11.90, he had used objectionable language against the Home Secretary and that he had approached the President directly complaining about the Home Secretary. It is stated that the applicant was chargesheeted for his behaviour and was warned on the conclusion of the departmental enquiry.
10. It is first contended by the applicant that as per the policy decision of the Government of Gujarat, policy regarding recording of ACRs an overall evaluation has to be made and routine comments are not be recorded. If any of them are used as an adjective it will not be treated as an adverse comment. The extracts of the said circular (Annex. A/39) are as under:
The overall evaluation is to be made on the basis of the opinion given by the Officer writing the Confidential Report. Routine type grading like 'Fair,' 'Average,' 'Ordinary,' 'Routine,' can be tolerated are not to be used in the Reports. However, if any of the above Adjectives is used as the grading, then it is not to be considered as an Adverse Remark. As a result, if the officer writing the report makes remarks of above routine type, it is not to be considered as an Adverse Remark.
The applicant is a member of the Indian Police Service and his ACR has. accordingly to be written in accordance with AIS (Confidential Rolls) Rules, 1970. The formate of ACR is also separately prescribed. Rule 7 of these rules provides that in the case of All India Services Offices working with the State Government, a copy of the ACRs has also to be sent to Central Government. Second provision to Rule 8 to provides that in the even in difference of opinion between the Central Government and the State Government as to whether particular remarks are adverse or not, the opinion of Central Govt. will prevail. Explanation below that rule is as under:
For the purpose of these rules, an adverse remark means a remark which indicate as to the defects or deficiencies in the quality of work or performance or conduct any officers but does not include any word or words in the nature of Counsel or advise to the officer.
Rule 10(2) provides that order passed on the representation against adverse ACRs are final. DPAR instruction quoted below Rule 10 further provide that an officer is entitled to submit a memorial to the President against the decision of the State Government in rejecting of his representation.
This contention has accordingly to be rejected.
11. The next set of arguments of the applicant revolve around the validity and applicability of Rule 16(3) of AIS (DCRB) Rules which is as under:
Central Government may, in consultation with the State Government concerned and after giving a member of the service at least three months, previous notice in writing, (or three months pay and allowance in lieu of such notice) require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
Rule 28(7) read with entry (iv)(a) of Schedule 'K' of AIS (DCRB) Rule also has this provision for retiring such Govt. servant.
12. The party in person has advanced following arguments namely,
(a) Being a permanent Govt. servant he is entitled to continue in service till superannuation unless the penalty of dismissal, removal or compulsory retirement is imposed after conducting a full fledged departmental enquiry.
(b) That part of Rule 16(3) which empowers the Govt. to compulsory retire w.e.f. any date is bad in law. The second underlined portion.
(c) Since he was been allowed to continue in service beyond the age of 50 years the next review could have been on his attaining fifty five years of age.
(d) No notice has been served on the applicant.
(e) The order is bad because he has been paid three months suspension allowance and not three months pay. Terminal benefits have not been paid.
13. As regard the first point the applicant has relied on the decision of Delhi High Court in U.O.I. v. R.S. Grewal, 1980(3) SLR 256. It is stated that the SLP was dismissed. The respondent in the said appeal was on IPS Officer, who had been compulsorily retired w.e.f. 24.12.75 under Rule 16(3) of AIS (DCRB) Rules as it then existed.
The Honourable High Court had held-
It is settled law that the right of a Government servant to hold his post in accordance with the rules of employment is absolute and subject only to the relevant rules and the law. As noticed by learned single Judge in Tara Singh etc. v. State of Rajasthan and Ors. , the Supreme Court has pronounce upon this right to be an absolute right deteasible according to rules. The relevant rule no doubt speaks of compulsory retirement of premature retirement and this is in recognition of the Doctrine of pleasure enunciated by Article 310 of the Constitution but the pleasure is not absolute. It is subject to law passed by competent legislature or rules framed under Article 309 of the Constitution and the protection provided under Article 311 of the Constitution.
The salient feature which has been pointed out again and again is that right to be in public appointment being a right to hold it in accordance with rules does not mitigate against the Doctrine of Pleasure enunciated by Article 311 of the Constitution and that this right can only be interested with in accordance with rules and in consonance with the principles of natural justice and fair play.
...Mr. R.S. Grewal made representations within the statutory period permitted by Rule 9 of the said Rules. Before the Government could look into the representations and decide in accordance with the rules whether the remarks were to be retained, modified as expunged the State Review Committee, the State Government and even Central Government made their respective recommendations and orders. This was a clear violation of the rules and we have no hesitation in holding that in all fairness the five sets of adverse remarks could not be taken into consideration in the circumstances noticed by us. The proceedings, therefore, of the State Review Committee and the recommendation of the State Government and the final order of the Central Government stand vitiated on the ground of violation of statutory rules and principles of natural justice and fair play. That the representations have been subsequently rejected is neither here nor there. The point in issue is that the five adverse remarks as communicated to Mr. R.S. Grewal could not be taken into consideration till an order under Rule 10 of the All India Services (Confidential Rolls) Rules, 1970 had been passed affirming those remarks, expunging them or modifying them.
The Rules themselves do not lay down any guidelines as to how the power of premature retirement is to be exercised but detailed instructions have been issued by the Central Government in this behalf from time to time. The learned Single Judge has set out these at some length. It is not necessary to examine each of those instructions. Suffice it to say that the procedure to be followed by State Governments while referring cases to the Central Government for premature retirement under Rule 16(3) is to be discerned from these instructions. The stage of review with regard to a member of an All India Service is when the member of the Service is about to attain the age of 50 or 55 years or is about to complete 30 years of qualifying service. The instructions lay down that annual review was not desirable. Indeed, in one of the recent decisions of the Supreme Court State of Uttar Pradesh v. Chandra Mohan Nigam and Ors. , it has been specifically laid down that review of cases to invoke Rule 16(3) is only possible at two stages, viz, when the officer is about to attain 50 years or 55 years of age and when he is due to complete 30 years of service.
It is settled law that the right of a Government servant to hold his post in accordance with the rules of employment is absolute and subject on Y to the relevant rules and the law. As noticed by the learned Single Judge in Tarn Singh etc. v. State of Rajasthan and Ors. , the Supreme Court has pronounced upon this right to be an absolute right defeasible according to rules. The relevant rule no doubt speaks of compulsory retirement or premature retirement and this is in recognition of the Doctrine of Pleasure enunciated by Article 310 of the Constitution but the pleasure is not absolute. It is subject to law passed by competent legislature or rules framed under Article 309 of the Constitution and the protection provided under Article 311 of the Constitution. As was observed in the case of State of Uttar Pradesh v. Chandra Mohan Nigam and Ors. 1978(1) S.L.R. 12.-
Thus the pleasure doctorine under Article 310 is conditioned by constitutional restrictions under Article 311 under Article 309 the appropriate legislature may regulate the recruitment and conditions of service and until so done, the President or his delegate and the "Governor or his delegate may make rules regulating the recruitment and conditions of service. The act passed by the appropriate legislature and the rules made under Article 309 will however, be subject to the provisions of the Constitution which include Article 311 and certainly the Fundamental Rights.
The pleasure doctrine under Article 310 is in a way unoffendingly resuscitated with appropriate vigour towards the tail-end of the career of a Government servant under Rule 16(3) in the public interest. Compulsory retirement under the service rules is not by way of punishment, as understood in service jurisprudence however, unsavoury it may be otherwise, during the entire tenure of Government servants from the date of temporary or probationary appointment till termination or retirement, as the case may be, there is an undoubted security for them against dismissal, removal or reduction in rank except in the manner laid down under Article 311(2), read with relevant laws or rules made under Article 309.
In order to pass the test of constitutionality Rule 16(3) must need the safeguarded by reasonable procedural guidelines in order that there may be no scope for arbitrariness or discrimination. That is how Rule 16(3), being silent, instructions speak and do vitiative service in a vacuous filed. The material procedure under the instructions, as if interwoven in Rule 16(3), can on no account be held invalid or impermissible.
14. The 3 Judge Bench of the Apex Court in State of U.P. v. C.M. Nigam had noted that the AIS (DCRB)Rules had been amended in July 1969 to provide that the age of 55 years was modified to 50 years. The earlier guidelines corrected upto 1.5.1967 have been noted by Apex Court in para 10 of the judgment. After the amendment of Rule in July 1969 the GOI issued a notification dated 14.8.69. Para 2 and 3 of this notification as quoted in para 12 of the judgment is as under:
2. I am to request that the State Governments may kindly take steps to review that records of all those All India Service Officers, who have already completed or who are about to complete the age of 50 in the next 6 months or so and are serving in connection with the affairs of the State....
3. The criteria and procedure for review of records and also service of notice on those, who are proposed to be retired, will be the same as outlined in this Ministry's letter No. 29/67/66-AIS(II), dated the 5th September, 1967. This review at the age of 50 will be in addition to the one contemplated later at the age of 55.
The first review in respect of respondents C.M. Nigam (IAS) was carried out in Oct. 1969. The Review Committee considered the case of a number of officers and recommended their continuation in service. On a querry of GOI the State Govt. reiterated its earlier recommendation regarding his continuance in service. The Review Committee again met in 1970 and recommended his retirement on the basis of which the orders were passed. This order of compulsory retirement was set aside by learned Single Judge of Allahabad High Court. The LPA filed by the State Govt. and Union of India were dismissed giving rise to this appeal. The Apex Court held-
17. We have no hesitation in holding that the principle governing the order or preventing detention evolved by this Court having regard to the constitutional right of a person appertaining to effective representation against such order is not applicable in the case of an order for compulsory retirement which casts no stigma on a Government servant and cannot be equated with an order affecting his right by way of disciplinary proceedings. An order of compulsory retirement, simpliciter, under Rule 16(3) does not affect any right of the Government servant.
18. ...This termination of service by way of premature retirement cannot be equated with a penal order of removal or dismissal. Even so, an order of compulsory retirement may be challenged in a Court if it is arbitrary or is actuated by mala fides.
26. ...It is sufficient for our purpose that these instructions do not violate any provision of the Act or of the rules. Rule 16(3), being a rigorous rule vis-avis a Government servant not himself willing to retire under Rule 16(2), has to be invoked in a fair and reasonable manner. Since Rule 16(3) itself does not contain any guidelines, directions or criteria, the instructions issued by the Government furnish an essential and salutary procedure for the purpose of securing uniformity in application of the rule. These instructions really fill up the yawning gaps in the provisions, and are embedded in the conditions of service. These are binding on the Government and cannot be violated to the prejudice of the Government to the prejudice of the Government servant.
29. The correct position that emerges from Rule 16(3) read with the procedural instructions is that the Central Governments, after consultation with the State Government, may prematurely retire a civil servant with three months' previous notice prior to his attaining 50 years or 55 years, as the case may be. The only exception is of those cases which had to be examined for the first time after amendment of the rule substituting 50 years for 55 where even officers, who had crossed the age of 50 years, even before reaching 55, could be for the first time reviewed. Once a review has taken place and no decision to retire on that review has been ordered by the Central Government, the officer gets a lease in the case of 50 years upto the next barrier at 55 and, if he is again cleared at that point, he is free and untrammelled upto 58 which is his usual span of the service career, this is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason.
The appeal was dismissed.
15. A 3 Judge Bench of the Apex Court in Baikunth Nath Das v. Chief District Medical Officer 1993 SCC (L & S) 521 : 1992 (1) SLJ 177 (SC) after considering the earlier decisions including those of Constitutional Benches has held-
34. 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 in 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) mala fide or (b) that 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 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 permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.
16. We also note that the Rule 16(3) in its present form is inserted in 1972 and is amended in April 1980 and that the Government of India have issued detailed revised guidelines vide their letter dated 31.07.87.
17. Even the case cited by the applicant goes on the show that power under Rule 16(3) could be exercised in accordance with guidelines issued by Govt. of India. The Apex Court has upheld the validity of provision of compulsory retirement not by way of punishment. The decision in Baikunth Nath Das case and C.M. Nigam.
18. It is next contended by the applicant that the last line in Rule 16(3) "or on any date specified thereafter in notice is bad in law as the same serves an uncanalised power on the executive". We note that as per the decision of Apex Court IAS Association U.P. v. U.O.I. 1993(1) SLR (SC) 69, these rules are statutory in character. Thus specific relief of quashing had to be sought for as per the decision of Apex Court in Prabodh Verma v. State of U.P. and reasons have to be assigned in the O.A. itself as per the decision in Anant Mills v. State of Gujarat .
None of these conditions are fulfilled.
19. Both these pleas have accordingly to be rejected.
20. The applicant has next contended that as allowed to continue beyond 50 years, this review could not have been made before attaining the age of 55 years as per decision in C.M. Nigam's case. He has also relied on para 18 of the Government of India's guidelines to contend that the review ought to be carried out in time so that the officer can be retired on attaining the age of 50 years or on completing 30 years in service.
The applicant has relied on the decision of Apex Court in C.M. Nigam v. State of U.P. in this regard.
21. We note that para 22 & 23 of the revised guidelines enclosed with GOI letter dated 31.7.87 is asunder:
22. Where the review in accordance with the time schedule indicated above has not been completed for any reason whatsoever, on a member of the service attaining 50 years of age, such review may be undertaken at any time thereafter.
23. When a decision has been taken, after review on completion of 50 years of age or 30 years of service or thereafter, in accordance with the procedure indicated above, to retain a member of the service, he/she would ordinarily continue in service till he/she attains the age of superannuation. However, Government have the absolute right to undertake another review at any time and may decide to retire the Government servant in public interest. If another review is undertaken the procedure outlined above shall be followed.
It is thus clear that even in those cases where the review has not been made for some reasons, there is no bar to such a review being made subsequently.
22. We also note that the appellant in Roshan Lal v. State of Haryana 1993 (4) SLR (P & H) 26 was an officiating Inspector of Police having been so promoted in 1990. He was permitted to continue in service after the review at 55 years of age ACR of May, 1989 Oct., 1989 was later placed on file and representation dismissed. The applicant was compulsory retired. The Honourable High Court held-
After the disposal of representation the Government was well within its right to reconsider the case of the petitioner for his retention in service beyond the age of 55 years and it did reconsider the matter and took the decision to retire him in terms of the service rules. It was held in the State of Punjab and Ors. v. Kulwantbir Singh 1933 (1) P.L.R. 1 (F.B.) : 1993 (1) SLR 647 that unfavourable remarks pertaining to a Government employee even after crossing of efficiency bar by him, could be taken into consideration for considering his continuance in service. In other words, it was held that the entire service record of an employee can be examined for coming to this conclusion while deciding the matter pertaining to his retention in service or premature retirement after the requisite qualifying service. In the present case, the adverse remarks happened to be recorded in May 1990 and the representation made against these remarks was disposed of on November 19, 1992. It was thereafter that the case of the petitioner for premature retirement was considered and the petitioner can draw no support from the fact that he was allowed to continue in service beyond the age of 55 years. State of Uttar Pradesh v. Chander Mohan Nigam and Ors. 1978 (1) S.L.R. 12, another case relied upon by the learned Counsel for the petitioner in no way helps the petitioner and in any case, the said case was duly considered by the Full Bench in Kulwantbir Singh's case (supra). In Baikunthanath Das and Anr. v. The Chief District Medical Officer 1992 Labour Industrial Cases 945 : 1992 (2) SLR (SC), it has been held that compulsory retirement is not a punishment and it implies no stigma and the decision of compulsory retirement is a subjective decision on consideration of the entire service record by giving more importance to the record of the latter years. The contention of the learned Counsel is thus rejected.
23. We note that both the rules and guidelines have undergone a change since C.M. Nigam's case. The fact in C.M. Nigam's case are distinct as the review committee had earlier met and recommended his continuation in service. The High Court in Roshan Lal's case held that decision in C.M. Nigam's case was not applicable. The new guidelines provide for review in case no review was made earlier. This contention has accordingly to be rejected.
24. It has been contended that as no notice as required under Rule 16(3) has been given the order is bad in law.
25. It appears from Ejaz's All India Services Manual (2001 edition) that the expression "or three months pay and allowances in lieu of such notice" has been inserted vide Notification 512 dated 26.4.1980 and has come into force w.e.f. 10.5.1980. Prior to insertion of this clause, the date was required to have been given in the said notice. When the rule has now been amended to provide three months pay and allowances in lieu of such notice the question of notification does not arise.
26. It is next contended by the applicant that what has been paid is suspension allowance and not the pay and allowance and that too after some time. He has relied on the decision in J.N. Sarkary v. Zonal Manager 1978 (1) SLR 471. The applicant therein was an employee of Food Corporation of India. Para 9 of the said decision is as under:
In the light of these decisions of the Supreme Court, it is clear that the question whether the payment of pay and allowances should be made simultaneously with the service of the order of termination is to be decided with reference to the language employed in the Regulation 22(2) which reads as follows:
The appropriate authority shall, if it is of the opinion that it is in the interest of the Corporation to do so, have the absolute right to retire category I, II, III and IV employee after he has attained the age of 50 years, by giving him a notice or three months' pay and allowances in lieu of such notice.
What do these words "by giving him a notice of three months...or three months' pay and allowances in lieu of such notice" imply? Do they not insist on payment and service or order of termination simultaneously? There are words like "termination forthwith by payment to the employee". But the words "the appropriate authority shall retire the Government servant by giving him three months' notice or three months' pay and allowances in lieu of such notice" make it abundantly clear that the three months' notice or three months' pay and allowances lieu of such notice are condition precedent for the retirement to follow. For the retirement to be effective, termination of service has to be simultaneous with the payment to the employee of the three months' pay and allowances.
27. The relevant part of GOI order is as under:
2. Sh. Chauhan be paid a sum equivalent to the aggregate of three months subsistence allowance that is admissible to him being under suspension, in lieu of 3 months notice.
3. The admissibility of difference of his pay with allowances and subsistence allowance during the period of his suspension will be reviewed on conclusion of the disciplinary proceedings pending against him and the decision of the Govt. of India thereupon.
28. Rule 16(2), which has provisions for voluntary retirement on completion of 30 years of service or 50 years of age provides that specific approval will be required in case of officers under suspension. GOI instructions clarify that the proviso to sub Rule (2) comes into force whether the employee is placed on suspension before or after he has given a notice for voluntary retirement. Rule 16(2A), which provides for voluntary retirement after 20 years of service, has no such provision.
29. We further note that explanation below Rule 6(1) of AIS (DCRB) Rules is as under:
Explanationfor the purpose of this rule:
(a) a departmental proceeding shall be deemed to be instituted when the charges framed against the pensioner are issued to him or, if he has been placed under suspension from an earlier date, on such date; and Rule 11 is as under:
11. Period not qualifying service for pensionThe following periods of service of a member of the service do not count as qualifying service for pension:
(1) Time passed by a member of the Service under suspension unless, on conclusion of the disciplinary proceedings, he has been fully exonerated or the suspension is held to be wholly unjustified:
Provided that where a member of the Service has not been fully exonerated in the disciplinary proceedings or the suspension has not been held to be wholly unjustified, the period of suspension shall count qualifying service only to such extent and in accordance with such directions as the competent authority may issue under Rule 5, 5-A or 5-B of the All India Services (Disciplinary and Appeal) Rules, 1969.
Rule 28(4) provides that payment of retirement benefits shall be regulated by such procedural instructions as may be issued by Central Govt. The Central Govt. have decided that simplified procedure for calculation of retirement benefits of Central Govt. employees will apply mutandis. Mutandis to AIS Officers. Para 2(c) provides for determination of average emoluments as per Rule 34 of CCS (Pension) Rules.
30. We further note that Rule 3 of A.I.S. (Discipline and Appeal) Rules contains provision relating to suspension of All India Services Officers. Rules 4 contains provision relating to payment of subsistence allowances during the period of suspension. Rule 5, 5A & 5B contain provision regarding admissibility of pay and allowances and treatment of service on reinstatement after the dismissal, removal or compulsory retirement is set aside as a result of appeal/review or orders are appealable orders.
31. It would thus appear that all these provisions will have to be read together for a proper understanding of the expression three months pay in respect of officers, who are under suspension and are compulsory retired under Rule 16(3).
32.Theappellant in R.P. Kapur v. U.O.I. 1999 (2) SC SLJ 252 was compulsorily retired by way of punishment while under suspension. It was also stated that the said period of suspension shall count as qualifying service for pension and nothing more. The appellant had contended before the authorities that subsistence allowance paid to him before the imposition of penalty has to be treated as emoluments. The Apex Court considered the following questions:
(i) Note 1 & Note 2 below Rule 50 of Railway Servants Pension Rules, which is part materia Rule 34 of CCS (Pension) Rules, and
(ii) Emoluments as defined in Rule 49, which is pari materia Rule 33 of CCS (Pension) Rules. The 3 Judge Bench held that as a decision has been taken to count the said service towards pension said period cannot be excluded for computing emoluments. Emoluments in said rule had been defined to mean basic pay, as defined in Fundamental Rule of Railway (pari materia FR 9(21)(a). The Apex Court held-
27. Rule 49 refers to 'basic pay' and Rule 1303 refers to 'amount drawn'. In our view, a combined reading of Rule 49(1) and Rule 1303 above referred to shows that if full basic pay is 'emoluments' in the case of a person under suspension, it being the amount drawn month by month by the Government servant. Thus the condition is satisfied. The other requirement of the definition of 'emoluments' for purpose of pension is that the amount is to be computed on the basis of emoluments drawn during the 10 months before retirement. This condition cannot be disregarded by the respondents. Thus both ingredients of the definition of 'emoluments' are satisfied. Further, it will be noticed that Rule 49(2) specifically requires that the scales as revised w.e.f. 1.1.1986 are to be taken into account as per the Railway Services (Revised Pay) Rules, 1986. This sub-rule cannot be allowed to be disregarded by the respondents.
33. The Apex Court in Rakesh kumar Singh v. Committee of Management has held as under:
9. Thus the consistent view of the Court is that where the rule permits giving of pay in lieu of the notice of termination and does not further provide as to which the payment is to be made, it only entitles the employees to pay for the period of the notice and payment of notice pay cannot be regarded as a condition precedent to the valid termination of service. But where the rule provides even by implication that payment to the employee of whatever is due to him should be simultaneous with termination of his service then fulfilment of that requirement has to be regarded as a condition precedent to the valid termination. In view of the words "terminated forthwith by payment" in the provisio to Rule 5(1)(b) this Court held that payment was intended simultaneously with termination and that was pointed as the essential difference between Rule 5(1)(b) with which it was concerned in Gopinath case and the rule which was considered in Dinanath case.
34. The Apex Court in State of Orissa v. Balakrushna Sathpathy was considering as to whether non payment of three months salary has vitiated the orders of compulsory retirement. After noticing the provisions of Rule 71(a) it held-
6. Rule 71(a) of the Orissa Service Code is as under:
The appropriate authority may also require any Officer to retire in public interest any time after he has completed thirty years qualifying service or attained the age of 50 years, by giving a notice in writing to Government servant at least three months before the date on which he is required to retire or by giving three months' pay and allowances in lieu of such notice.
8. The Rule requires three months prior notice to be given or payment of three months pay and allowances in lieu of such notice. In other words, the alternative mode prescribed of payment of the amount in lieu of three months notice, when adopted, entitles the Government servant to get that amount, but the validity of the order of compulsory retirement does not depend on its prior full payment as a pre-requisite. The only right of the Government servant under such an order is to get the amount of three months pay and allowances in lieu of such notice, and no more. This is the manner in which similar provisions have been construed in Raj Kumar v. Union of India and Union of India v. Arun Kumar Roy .
35. It would be clear from the decision in Rakesh Kumar Singh (supra) that whether the payment has to be simultaneous depends on the language of the rule. While interpreting Rule 71(a) of Orissa Service Code, which is like Rule 16(3) but phrased in a different manner, the Apex Court held that payment need not be simultaneous. The Single Judge in J.N. Sarkary's case held that rules require simultaneous payment. The 3 Judge Bench in R.P. Kapur's case has held the allowance paid during a period of suspension which counts for pension as pay for the purposes of emoluments. Simultaneous reading of all the rules suggest that payment of suspension allowance only is in accordance with rules. This contention is accordingly rejected.
36. It is next contended that the orders of the Central Govt./notification of State Govt. are bad in law as they are stigmatic having mentioned the pending departmental proceedings.
37. Mr. B.N. Doctor, learned Counsel for the respondents has drawn our attention to the decision of a 3 Judge Bench of the Apex Court in H.F. Sangti v. Registrar General, High Court of Karnataka, The services of appellants had been terminated for unsatisfactory service during the period of probation. The order had also used the expression 'as they are unsuitable to hold the post of Munsifs'. The order had been challenged amongst others on the ground of being stigmatic. The High Court had dismissed the writ petition.
The Apex Court held-
In our opinion the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsifs.... The impugned order discharged has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is punitive.
38. We are of the view that pending disciplinary enquiries/mentioned of the chargesheet have been referred to in the context of payment of subsistence allowance only. The ratio laid down in Sangti's case (supra) applies to this case also. Hence the order cannot be said to be stigmatic.
39. It is finally contended by the applicant that the recommendation of the review committee are vitiated on account of following:
(a) The Review Committee had met only once in 2001 when the case of the applicant was considered and again in another year when the decision regarding compulsory retirement when Shri N.K. Palas was taken. The committee has not met either earlier then this or later then this.
(b) The committee has not taken into account various letters sent to the applicant regarding his good performance. These are as under:
*(i) DIG's letter of 20.12.84 regarding police arrangements at the time of RMs visit.
(ii) Chairman Legal Aid Committee and District Judge's letter for help and assistance in organising Lok Adalat.
*(iii) ACS's letter of 13.04.88 at the time of relinquishing charge.
*(iv) Memo of Govt. letter forwarded by C.P. Ahmedabad's letter dated 16.04,90 for satisfactory arrangement at the time of Home Minister's visit.
*(v) DG(P)'s letter dated 16.07.92 form maintenance of peace and communal harmony at the time of Rath Yatra, for which permission had not been give. Copy was directed to be kept on ephemeral character roll. (Applicant was SRPF).
*(vi) CP's Ahmedabad's letter dated 14.06.93 for duties performed for maintenance of Law and Order after demolition of Ramjanmabhomi Babri Masjid on 6.12.92.
(vii) Commandant General Homeguard's letter dated 23.12.94 for making the annual day and week celebration a success.
*(viii) DG(P)'s letter dated 15.01.97 enclosing Director IB & Chairman All India Police Sports Control Board letter for conducting the All India Police Equestrian meet.
* These letters appear to be marked to many officers
(c) The biased approach of the department were also appeared from the fact that even though the applicant had been promoted on 5.11.1985, the adverse remarks for 1984-85 had been communicated thereafter.
(d) Average remarks cannot be said to be adverse for the purposes of such review.
(e) The Review Committee would indicate that the committee has been taken a decision to recommend the committee for his retirement and only thereafter given reason for such decision. This is quoting the cart before the costs.
It was also urged at the time of hearing that he had performed better than his senior colleagues at the time of departmental examination and one of them became his superintendent of Police while he was in Sidhpur.
40. A perusal of guidelines of the Government of India indicates that the Committee has to meet each year but said circular further provides that even if is not met, the cases of concerned persons can be considered subsequently.
41. The position regarding ACRs has been discussed in para 6 above. We also note that the committee in the last between paragraphs have noted adverse remarks which were communicated and the representation against ACRs had been rejected.
42. Apart from the decisions in Baikunth Nath Das's case and C.M. Nigam's .v case, the following decisions have also been cited.
The decision of Apex Court in State of U.P. v. Lalsa Ram 2001 SCC (L & S) 593 : 2001 (3) SLJ 111 (SC). The Apex Court held-
15. Incidentally, the five guiding principles as laid down in Baikuntha Nath case by this Court stand accepted in another three-Judge Bench's judgment of this Court in Posts and Telegraphs Board v. C.S.N. Murthy wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the Courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record: Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.
16. This Court on the basis as above in Gurdas Singh case observed that it is on this perspective the matter shall have to be considered as to whether it is in public interest to retain him in the service and the whole record of the service of the employee shall have to be considered including any uncommunicated adverse entry as well, provided however, the service conditions/regulations do not run counter thereto. We also do record our concurrence therewith and record that the same holds good excepting however the issue of mala fides. The issue of mala fides has not been or even raised in the pleadings of the matter in issue and, as such, we arc not called upon to delve into the same. The Appointing Authority upon consideration of the entire service record as required under the Rules and having formed its opinion that the compulsory retirement of the respondent being in public interest issued the order and in the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matters by the Courts in exercise of their jurisdiction under the constitutional mandate is very restricted and the Courts shall have to tread on the issue with utmost care and caution by reason of very limited scope of inference. This High Court has, in fact, ignored this aspect of the matter and proceeded solely on the basis of the factum of there being no adverse entry in the recent past. Needless to state that adverse entries did not stand extinguished by mere lapse of time but they continued to be on record and it is for the employer to act and rely thereon in the event of there being a rule permitting an order of compulsory retirement.
The decision of Apex Court in C. Badrinath v. State of Tamil Nadu 2001 SCC (L & S) 13. It held-
56. The above sentence in Gurdas Singh needs to be explained in the context of the Bench accepting the three-Judge Bench ruling in Baikuntha Nath Das. Firstly, this last observation in Gurdas Singh case does not go against the general principle laid down in Baikuntha Nath Das to the effect that though adverse remarks prior to an earlier promotion can be taken into account, they would have lost their "sting". Secondly, there is a special fact in Gurdas Singh case namely, that the adverse remarks prior to the earlier promotion related to his "dishonesty". In a case relating to compulsory retirement therefore, the sting in adverse remarks relating to dishonesty prior to an earlier promotion cannot be said to be absolutely wiped out. The fact also remains that in Gurdas Singh case there were other adverse remarks also even after the earlier promotion, regarding dishonesty though they were not communicated. We do not think that Gurdas Singh is an authority to say that adverse remarks before a promotion, however remote, could be given full weight in all situations irrespective of whether they related to dishonesty or otherwise. As pointed in the three-Judge Bench case in Baikuntha Nath Das which was followed in Gurdas Singh they can be kept in mind but not given the normal weight which could have otherwise been given to them but their strength is substantially weakened unless of course they relate to dishonesty.
58(3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain should principles of fairness.
(4) If the adverse remarks relate to a distinct past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement.
(5) If the adverse remarks relate a period to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strengthfully so as to be ignored altogether.
(6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed.
43. We note that para 5 to 7 of DOPT's letter dated 31.7.87 is as under:
5. Members of the All India Services are appraised periodically before they are allowed to move to the next higher level. Such appraisal takes place when a member is appointed to the Selection Grade or Super Time Scale. An appraisal also takes place when a member is appointed to higher management posts at the level of Additional Secretary or Secretary to the Government of India (or equivalent level in the State Government). It is essential that such appraisals should be rigorous and any fall in standards should be noticed immediately. A member of the All India Service who has completed 30 be found to occupy a senior administrative post. It would not be acceptable to find that such a member has become a mere passenger in the senior level in which he/she is placed. One must always guard against the operation of the 'Peter Principle'.
6. Nevertheless, it is sometime found that a few members of the All India Services do tend to become mere passengers in the post or at the level in which a member is placed for the time being. They become either stale or listless; they do not exhibit any creativity or innovativeness; and they do not achieve results, in some other cases, information may be available which casts grave doubt upon the integrity of a member. The form of the Annual Confidential Report has been recently revised in order to bring out, as far as possible, these tendencies or traits which would alert Government to take suitable action under the rules.
7. It is seen that in some cases the overall grade or assessment given on the performance of a member of an All India Service is "average". To describe a member of an All India Service as average is not complimentary. While it may not be an adverse remark, it is nevertheless a reflection upon his work or conduct and should be taken to indicate work which is ordinary, routine and bureaucratic. Remarks like "Adequate" and "Satisfactory" over a period of 5-7 years, without mention of any notable achievement, would also indicate that the member has reached a plateau. Similarly, it is found that in some cases, a member of an All India Service receives a lukewarm or equivocal certificate of integrity. Such an entry would indicate that there is some doubt in the mind of the Reporting/Reviewing Authority about the integrity of the member. In all such cases, it would be quite appropriate for the Government to examine the matter thoroughly in order to decide whether action under Rule 16(3) would be warranted.
Relevant part of para 4 and para 8 of the guidelines enclosed with this letter are as under:
4. ...Entries in the CR dossier relating to integrity should be taken into account by the Review Committee. Even if a particular remark on integrity has not been communicated to the officer, o: if the remark is of a general nature, the review committee could take into account such remarks while reviewing any proposal for premature retirement. The Supreme Court, in the case of Union of India v. M.E. Reddy observed:
...Under the various rules on the subject, it is not every adverse entry or remark that has to be communicated to the officer concerned. The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuous or may be connected with general reputation of honesty or integrity that a particular officer enjoys.
In the case of R.L. Butail v. Union of India and Anr. , it has been observed as follows:
The contention, therefore, that the adverse remarks did not contains specific instances and were, therefore, contrary to the rules cannot be sustained. Equally unsustainable is the corollary that because of that omission, the appellant could not make an adequate representation and that therefore, the confidential reports are vitiated.
8. ...While the entire service record of an officer should be considered at the time of review, greater emphasis will be placed on his performance during the 5 years preceding the review. If an officer had been promoted to a higher post during the said period of 5 years, the service in the higher post shall receive greater emphasis. If, during the aforesaid period of 5 years there is evidence of deterioration in efficiency and unsatisfactory performance, the Review Committee shall examine the entire service record and arrive at a total picture about the suitability or otherwise of the officer for further retention in Service.
44. As far as question of bias is concerned, the Apex Court in Abraham Kuruvila v. S.C.T. Institute of Medical Sciences and Technology 2005 SCC (L & S) 538 has held as follows:
6. It is now a well-settled principle of law that bias which would mean and imply "spite or ill will" must be proved by raising requisite plea in this behalf and by adducing cogent and sufficient evidence in support thereof. In fact, bias is a state of mind and it shows predisposition. Thus, general statements would not meet the requirements of law. Certain correspondence/orders which might have been passed against the petitioner as far back as in 1994 and 1998 would not meet the requirement of law to prove bias. Not only existence of a factual bias has to be proved, but it must also be shown that the same has resulted in miscarriage of justice.
45. It would appear from the Apex Court's decision in Baikuth Nath Das and C.M. Nigam 's case (supra) and decision cited in para 42 above that the order of compulsory retirement can be challenged only on the following grounds:
(i) That the order has been passed arbitrary or is actuated by malafides. That this order is passed on subjective satisfaction.
(ii) That it is the case of either no evidence or perverse evidence.
(iii) That the relevant facts have not been considered and irrelevant facts taken into account.
46. Coming to the facts of this case, we find that the allegations of mala fide or bias are sought to be introduced on the ground of his having obtained higher marks than two of his seniors in the departmental examination conducted in 1983 and the communication of adverse remarks for the year 1984-85 after the promotion to the senior scale.
The respondents have explained as to how the ACP of 1984-85 came to be recorded after the DPC had met and the applicant promoted to senior scale. It is further stated by Mr. Doctor, learned Counsel for the respondents that the promotion to senior scale is on the basis of seniority but not on the basis of selection.
47. We further note that some of the representations against adverse ACRs, the applicant has stated the name of senior officers under whom he had worked and who had not noticed his defects. One of the officers mentioned is Shri P.P. Pandey then S.P. Patan, para-10, para-3 of representation dated 28.9.90, 4.12.93 against adverse remarks for 1.4.90 to 4.11.90, 1991-92 refers.
We also note that Shri Biharilal K. Ohja had filed a complaint with Anti Corruption Bureau on 23.01.85.
48. It is absolutely far fetched to suggest that only because of this incident all his successive ACRs are average with hardly is few good ACRs. The applicant must have worked under number of officers during this period.
Apex Court in the case of Abraham Kuruvila (supra) has held that bias etc. have to be proved by raising requisite pleas in this behalf and by adducing cogent evidence. The incidents should not be remote. It should also lead to miscarriage of justice.
The Apex Court in the case of State of Bihar v. P.P. Sharma has held that officers against whom mala fide or bias is alleged have to be joined as co-nominee. That has not been done.
49. In view of the above discussions, the contention regarding mala fide or bias etc. have been stated to be rejected.
50. We have quoted in para 21 extracts of the guidelines issued by the Government of India regarding compulsory retirement of All India Service Officers. The extract of forwarding letter quoted in para 43 above clearly suggests that performance of All India Service Officers have to be noteworthy and that average performance is not complimentary. Remarks like average or satisfactory over 5-7 without any notable achievement would show that the officer has reached a plateau. The Apex Court in C.M. Nigam's case (supra) has noted that these guidelines fills the yawning gaps in the rules. These guidelines have not been challenged. We have noted in para 6 above that during the entire period from 1986-87 to 1996-97 (except 1989-90 and 1994-95 for which remarks are not on record) has received either average or adverse remarks. We note that good has been recorded for past of 1993-94 and for 1994-95.
51. It has been argued by the applicant that some of his performance have not been taken into account. The representation referred to at Annexure A/35 have been summarised in para 39(b) above. It has also been contended that ACR for 3 months during 1997-98 has not been recorded and would have been good.
52. A perusal of the minutes of the review committee shows
(i) ACRs of 1989-90, 1994-95 are not considered and that ACR for 1993-94 is average.
(ii) The appreciation produced by the applicant have not been considered.
(iii) Comments of doubtful integrity with respect to note attached is recorded in 1984-85 and 1987-88 and note regarding integrity has been attached in 1992-93 and 1993-94.
The statement of ACRs produced by the respondents shows that he has been assessed as good for second half of 1993-94 and 1994-95.
53. We have noted that six of these letters appear to have been issued to a number of officers and are for maintenance of peace and communal harmony during certain festivals and for maintenance of law and order during the visit of high dignitaries. The other two letters specifically addressed to the applicant are for cultural programme.
Even though the remarks of 1986-87 were not communicated they could have been taken into account as per the Apex Court decision. Even if the same is disregarded there are other ACRs for eight years.
54. The applicant has not argued on non consideration of good ACRs for later half of 1993-94 and 1994-95. We note that Advisory remarks have been communicated for first half of 1993-94 and remarks regarding integrity have been recorded. Adverse has been recorded for 1996-97. He has argued for non recording of ACR for 3 months in 1997-98. The applicant had been placed under suspension that year and a criminal case registered against him for having disproportionate assets. It further appears that the applicant, who is on IPS officer of 1981 batch, has not been given further promotion.
55. It is a settled position of law that Tribunal cannot exercise an appellate jurisdiction. The order of compulsory retirement is based on subjective satisfaction. Having regard to what have been discussed above, we do not find any reason to interfere with the findings of the Review Committee.
56. In view of the conclusions arrived at in paras 10, 19, 23, 35, 38 and 55 above, there is no merit in the O.A. The same deserves to be dismissed and is dismissed. No order as to costs.