Chattisgarh High Court
K.Selvaraj vs ) The Central Industrial on 5 July, 2008
HIGH COURT OF CHATTISGARH: BILASPUR
Writ Petition No. 96 of 2000
K.Selvaraj
...Petitioners
Versus
1) The Central Industrial
Security Force
2) The Inspector General (NS)
Central Industrial Security
Force
3) The Union of India
...Respondents
! Shri P.S. Koshy, counsel for the petitioner.
^ Shri S. K. Beriwal, Standing counsel with Shri Ajay
Barik, counsel for the respondents.
SB: Hon'ble Mr. Satish K. Agnihotri, J.
Dated:05/07/2008 : Judgement (Writ Petition under Article 226/227 of the Constitution of India) (Passed on this 5th day of July, 2008) By this petition, the petitioner challenges the legality and validity of the order dated 29-6-2000 (Annexure P/1), whereby the petitioner was compulsorily retired with immediate effect after attaining the age of 50 years on 31-5- 1999 and the order dated 29-10-2000 (Annexure P/2), whereby his representation against the impugned order dated 29-6- 2000 was rejected by the respondent No.1.
2) The facts, in brief, as projected by the petitioner, are that the petitioner joined the Central Industrial Security Force (for short, "CISF") in the year 1975 as Assistant Sub-Inspector (Executive). In the year 1986 he was promoted to the post of Sub-Inspector (Executive). Further, he was promoted to the post of Inspector (Executive) in the year 1993. The petitioner had received eight cash awards and thirteen commendation for various activities. There was no adverse entry in his service record as nothing was communicated to him. A charge-sheet was issued in the year 1985, resulting into imposition of removal from service on 3-2-1986, the same was set aside by the High Court of Madras in Writ Petition No. 1659 of 1986. The imposition of withholding of one increment in the year 1996 was also quashed in appeal by the Commandant V.S.C.C., Thumba. The petitioner received the impugned order dated 29-6-2000 compulsorily retiring him under the provisions of the Rule 56 (j) of the Fundamental Rules (for Short, "FR"), by the respondent No.2. Being aggrieved, the petitioner made a representation to the respondent No.1. The same was rejected by the respondent No.1 under the signature of Assistant Inspector General/Estt. Thus, this petition impugning the above stated orders.
3) Mr. P.S. Koshy, learned counsel appearing for the petitioner would submit that the provisions of Rule 56 (j) of FR applies to the Government servants and not to the members of the armed forces as the petitioner is a member of CSIF which came into force under the provisions of the Central Industrial Security Force Act, 1968 (for short, "the Act, 1968). Under the provisions of Section 3 of the Act, 1968 CISF would constitute as an armed force of the Union. In exercise of the power under the Act, 1968, Central Industrial Security Force Rules, 1969 (for short, "the Rules 1969") were framed. There is no provision for premature retirement on attaining the age of 50 years under the Act, 1968 and the Rules 1969. The petitioner, being holder of the post of Inspector, comes in the grade "Group
-C Non-gazetted", therefore, the provision of sub-clause
(ii) of FR 56 (j) would be applicable. Grade -C employees may be retired prematurely after attaining the age of 55 years. It appears that the petitioner has been classified as Grade -B., after notification dated 20-4-1998 (Annexure P/5) issued by the Ministry of Personnel, Public Grievances and Pensions came into force which provides for classification of the posts in respect of Central Civil posts. The petitioner is a promotee and has not entered into Group - B service directly. Under the Central Government Group Insurance Saving Fund (CGGISF) the petitioner is a subscriber under Group - C and he was paying his contribution at the rate of Rs.60/- per month (Annexure P/6). The petitioner could have been considered for compulsory retirement only after he attains the age of 55 years. The petitioner could have been retired only in public interest, if his service records were bad and his integrity was doubtful. There was no adverse entry in the entire service of the petitioner. Even if a classification of the Civil posts are made applicable to the members of CISF, the petitioner would fall in Group-C as the petitioner was working at that time on the pay scale of Rs.6500/- - 9000/-. Even if the petitioner was to retire on attaining the age of 50 years, the review must be done six months before the Government servant attains the age of 50/55 years, whichever is earlier. The date of birth of the petitioner is 1-6-1949. The petitioner attained the age of 50 years on 31-5-1999 and the impugned order was passed on 29-6-2000. In case of the petitioner, his service record reviewed after he attained the age of 50 years which is not permissible under law. The respondents in their additional reply dated 16-6-2008 have admitted that the review committee to consider the case of the petitioner was held on 23-6-2000 after the petitioner crossed the age of 51 years as the petitioner attained the age of 50 years on 31-5- 1999. The petitioner had received five very good entries, 2 good entries and 2 average entries in his last ten years confidential reports. The petitioner was further granted promotion in the year 1993 within a period of seven years from the date of the order. The petitioner was granted very good in the ACR for the year 2000. Learned counsel would further submit that the impugned order deserves to be quashed on account of the fact that the orders are not in conformity with the provisions of law.
4) Per contra, Shri S.K. Beriwal, learned counsel appearing for the respondents would submit that the petitioner attained the age 50 years on 31-5-1999 when he was holding the post of Inspector. The post of Inspector in the force including CISF has been classified as "General Central Services Group `B' Non-Gazetted" as notified by the Ministry of Home Affairs dated 18-5-1999 with effect from 10-10-1997. This was notified in the Gazette on 25-1-2000 (Annexure R/2). The respondents framed guidelines to strengthen the administration on 16-8-1999 (Annexure R/3), wherein it was stated that in case of Inspectors of CISF, the review under FR 56 (j) is required to adjudge their suitability for further continuance in service or otherwise after completion of 30 years of qualifying service on the basis of entire service records including records of the preceding five years. The case of the petitioner was considered after he attained the age of 50 years for premature retirement with effect from 4-7-2000. Rule 70 of the CISF Rules, 1969 stipulates that the supervisory officers and members of the Force shall, in respect of all other matters regarding conditions of service for which no provision or insufficient provision has been made in these rules, be governed by the rules and order for the time being applicable to officers holding corresponding posts in the Central Government in respect of such matters. Learned counsel further submits that FR 56 (j) (i) provides that if the employee is in Group A or B service or post in a substantive, quasi-permanent or temporary capacity and had entered government service before attaining the age of 35 years, he, in public interest, may be prematurely retired after attaining the age of 50 years. Thus, the contention of learned counsel appearing for the petitioner that services of the petitioner ought to have been reviewed on attaining the age of 55 years, is misconceived. The petitioner joined service in CISF as Assistant Sub-Inspector (Executive) on 24-3-1975. The petitioner was promoted to the rank of Inspector in the year 1993. The petitioner during his service career was punished as many as seven times for his various acts, omissions and misconducts, the details of which are as under:
(i) `Censure' was imposed for violation of CISF Rules 1969 for attempting to bring political influence upon the superiors for cancellation of posting on 23-4-1984 (Annexure R VI).
(ii Punishment of stoppage of increment for ) one year for non reporting on his duty at MAPP, Kalpakkam on 12-12-1983 and assaulting one civilian vide order dated 14-6-1984 (Annexure VII).
(ii Punishment of stoppage of increment for
i) one year for overstay from leave and joining time vide order dated 19-5-1992 (Annexure R/VIII).
(iv Imposition of punishment of `Censure' ) again by order dated 20/21-4-1995 (Annexure R/IX).
(v) Imposition of punishment of censure again by order dated 8-5-1997 (Annexure R/X).
(vi Imposition of punishment of pay fine ) equal to 2 days pay by order dated 21-10- 1997 (Annexure R/XI).
Apart from the above, during the entire service career, 12 annual confidential reports of the petitioner were found average.;
1975 to 1983-average, 1994-very good, 1995- good, 1996- average.
1997- average, 1998 (1.1.1998 to 30.4.1981) -average, 1998 (1.5.1998 to 31.5.1981)-non-initiation certificate and 1998 (.1.6.1998 to 31.12.1998) -very good.
5) The petitioner was found negligent on duties. The petitioner was removed from service for serious mis-conduct, later on removal order was quashed by the High Court of Madras in Writ Petition No.1885/87 and the petitioner was re- instated in service. The representation of the petitioner was considered and it was found that premature retirement of the petitioner from service in public interest was in accordance with the provisions of FR 56 (j). Subscription towards Group Insurance Savings has nothing to do with classification of CISF Inspectors as they fall under category of "Group-B Non-Gazetted Central Services". The petitioner was prematurely retired on the basis of his service record and on the ground of ineffectiveness, and not as a measure of punishment.
6) Under the provisions of FR 56 (j) the review of service was to be done six months before a government servant attains the age of 50 years and as such review of the services of the petitioner became due in May, 1999. On receipt of the fresh notification the superannuation review of the petitioner was held on 23-6-2000 and the petitioner prematurely retired on 29-6-2000 at the age of 51 years , on being found unfit for further retention in Government service. Since the post of Inspector was re-classified as "Group-B" vide notification dated 18-5-1999 (Annexure R/1), by that time the petitioner had already crossed the age of 50 years, which was otherwise the age of superannuation review of Group -B posts. Services of the petitioner could not have been reviewed as above, till the age of superannuation, if this was not done at the earliest, after classification of the post of Inspector as Group -B. Thus, this petition deserves to be dismissed with costs.
7) I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
8) It is evident that the case of the petitioner was considered for review superannuation after he attained the age of 50 years on 31-5-1999 on 23-6-2000 and the impugned order retiring the petitioner prematurely was passed on 29- 6-2000. The petitioner was holding "Group -C" post till the Ministry of Home Affairs, Government of India, issued a circular dated 18-5-99 (Annexure R/1), whereby the Inspector carrying pay scale of Rs.6500/- to 10,500/- was classified as "General Central Services Group "B" Non- Gazetted".
9) The circular dated 18-5-99 (Annexure R/1) issued by the Ministry of Home Affairs, Government of India, reads as under:
"To New Delhi, the 18th May 98.
1. DG, ITB Police.
2. DG, CRPF.
3. DG, BSF
4. DG., CISF.
5. DG, NSG.
Sub: Classification of posts:-
Sir, I am directed to refer to Ministry of Personnel, Public Grievance & Pension, Deptt. of Personnel & Training O.M. No.13012/1/98-Estt (D) dated 12th June 1998, and to say that a review has been undertaken for classifying various categories on Non-gazetted Combatised posts in the Central Para Military Forces of the revised norms of pay scales/ pay ranges notified in the Official Gazette vide SO-332(E) dated 20th April 1998 of the Deptt. of Personnel & Training Notification. It has now been decided to classify the following categories of posts in the Combatised rank w.e.f. 10-10-97 as indicated against each:-
S.N Designation of Post Classification of Post o.
(i) Subedar Major carrying General Central Services scale of pay of Rs.6500- Group `B' Non-Gazetted.
10500 plus Rs.200-
Apptt.pay.
(ii Inspector carrying scale General Central Services ) of pay of Rs.6500-10500 Group `B' Non-Gazetted. (ii Sub-Inspector carrying General Central Services
i) scale of pay of Rs.5500- Group `C'.9000
(iv Asstt. Sub-Inspector General Central Services ) carrying scale of pay of Group `C' Rs.4000-6000
(v) Head Constable carrying General Central Services scale of pay of Rs.3200- Group `C'.
4900(vi Constable carrying scale General Central Services ) of pay of Rs.3050-4500 Group `C'.
2. This issues with the concurrence of Deptt. of Personnel & Training vide their Dy.No.177/JS(E)/98 dated 24.11.98. Sd/-"
10) The aforesaid notification was published in the Gazette notification dated 25.1.2000 in exercise of power under Article 309 of the Constitution of India (Annexure R/2).
The petitioner attained the age of 50 years on 31-5-1999. The case of the petitioner could not be reviewed as till 18- 5-1999 the petitioner, being Inspector, was classified as "Group -C" employee. For "Group -C" employees, age of compulsory retirement was 55 years. The office of the Directorate General, CISF by circular dated 18-8-1999 observed that review under FR 56 (j) in the case of Inspectors CISF was required to be made to adjudge their suitability for further continuance in service or otherwise after completion of 30 years of qualifying service or beyond the age of 50 years if they have entered in Government service before attaining the age of 35 years. However, in case, any of them has entered in Government service after attaining the age of 35 years, his suitability for continuance in service or otherwise will continue to be assessed at the age of 55 years.
11) Since the petitioner had already attained the age of 50 years before circular dated 18-5-1999 came into force, the case of the petitioner was reviewed for adjudging his suitability for continuance in service or otherwise. The petitioner has suppressed material facts with regard to imposition of various punishments as detailed in the return filed by the respondents. After having considered various punishments imposed on the petitioner from time to time and adverse entries in his ACR, it appears that the consideration was bona fide, in public interest, and not for collateral purposes. The petitioner has failed to establish any mala fide or any error in the decision of the Review Committee which decided to retire the petitioner prematurely. The petitioner has not rebutted the averment made by the respondents in return with regard to various punishments imposed on the petitioner.
12) The contention of the petitioner that Fundamental Rules are not applicable to the Inspectors of CISF as CISF is an armed force as constituted under the provisions of the Act, 1968, deserves to be rejected as Section 22 of the Act, 1968 empowers the Central Government to make rules, regulating the classes, ranks, grades, pay and remuneration of members of the Force and their conditions of service in the Force. In exercise of power under Section 22 of the Act, 1968, Rules 1969 were framed. Rule 70, which was incorporated by amendment on 3-6-1979, reads as under:
"70. Other conditions of service.- The supervisory officers and members of the Force shall, in respect of all other matters regarding conditions of service for which no provision or insufficient provision has been made in these rules, be governed by the rules and order for the time being applicable to officers holding corresponding posts in the Central Government in respect of such matters."
13) Thus, Fundamental Rules are applicable in respect of premature retirement as there is no provision under the provisions of the Act, 1968 and the Rules 1969. Rules 1969 were later on repealed by the CISF Rules 2001 with effect from 5-11-2001. In the case in hand, Rules 1969 would be applicable. Thus, services of the petitioner were rightly reviewed under FR 56 (j). Whether the services of the petitioner can be reviewed after he attained the age of 50 years, as in normal case, the same should be done six months before a Government servant attains the age of 50/55 years. In the present case since the petitioner was classified in "Grade -C", wherein the age of superannuation review was 55 years. After re- classification of the Inspector (petitioner) by order dated 18-5-1999 the age of superannuation review was 50 years. By that time, the petitioner crossed the age of superannuation review i.e.,50 years just one month before. Thus, it was deemed proper to consider his case immediately and the impugned order dated 29-6-2000 (Annexure P/1) retiring the petitioner prematurely was passed. In case the petitioner was not reviewed after 50 years, the case of the petitioner, being Grade `B' officer, could not have been reviewed at the age of 55 years. The petitioner joined service in the year 1975 before he attained the age of 35 years.
14) I am thus, constrained to hold that there was no error in considering the case of the petitioner for superannuation review after he attained the age of 50 years.
15) In the matter of Baldev Raj Chadha Vs. Union of India and others1 cited by learned counsel appearing for the petitioner, the Hon'ble Supreme Court in respect of voluntary retirement observed (para 16) that "Any order which materially suffers from the blemish of overlooking or ignoring, willfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard of the totality of material facts viewed in a holistic perspective".
16) The decision of Delhi High Court in the matter of V.K. Issar Vs. Union of India and others2 cited by learned counsel for the petitioner is not relevant to the facts of the present case as the High Court held that the respondents cannot be permitted to compulsorily retire the employee on the basis of remote ACRs when nothing adverse was found after 1992.
17) In the present case the respondents have established that the entry in the ACRs was throughout adverse in case of the petitioner and he was imposed punishment on several occasions for his ineffectiveness.
18) In the present case, the allegations leveled by the respondents in the return indicating various punishments imposed on the petitioner was not refuted by the petitioner and on the facts, it should be deemed to have been proved and correct. Law is well settled that Review Committee has to take overall service record in holistic approach.
19) In the matter of Union of India Vs. Col. J.N. Sinha and another3, the Supreme Court, observed as under :
"9. Now coming to the express words of Fundamental Rule 56(j) it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the Government on the ground of mala fide. But that ground has failed."
20) The dictum laid down by the Hon'ble Supreme Court in the matter of Union of India Vs. Col. J.N. Sinha and another (supra), has been followed by a Constitutional Bench of the Hon'ble Supreme Court in the matter of R.L. Butail Vs. Union of India and others4. The ratio laid down by the Hon'ble Supreme Court in both the cases with regard to compulsory retirement vis--vis applicability of FR-56 (j) have been consistently followed in several other decisions. (see, Mayongbam Radhamohan Singh Vs. The Chief Commissioner (Administrator), Manpur and others5 )
21) In the matter of Union of India Vs. M.E. Reddy and another6, the Hon'ble Supreme Court, again relying on the decision in the matter of Col. J.N. Sinha and another (supra), observed as under -
"The observations made above clearly reveal the object of this rule and lay down that where an officer concerned is of doubtful integrity he can be compulsorily retired under this rule."
And further, "We have already pointed out relying on the dictum of this Court laid down by Hidayatullah, C.J., that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement even if they are not communicated to the officer concerned.
Thus, the two grounds on which the Calcutta decision was based are not supportable in law. For these reasons, therefore, we hold that the decision of the Calcutta High Court referred to above was wrongly decided and is hereby overruled."
22) In the matter of C.D. Ailawadi Vs. Union of India and others7 the Supreme Court observed as under-
"8. An aggrieved civil servant can challenge an order of compulsory retirement on any of the following grounds as settled by several decisions of this Court: (i) that the requisite opinion has not been formed; or (ii) that the decision is based on collateral grounds; or (iii) that it is an arbitrary decision. In Union of India v. Col. J.N. Sinha this Court held that if the civil servant is able to establish that the order of compulsory retirement suffered from any of the above infirmities, the court has jurisdiction to quash the same. It is not disputed that compulsory retirement under Rule 56(j) is not a punishment as it does not take away any of the past benefits. Chopping off the dead wood is one of the important considerations for invoking Rule 56(j) of the Fundamental Rules. In the instant case, on the basis of the service record, the Committee formed the requisite opinion that the petitioner had ceased to be useful and, therefore, should be retired prematurely. We do not think petitioner has been able to place any satisfactory material for the contention that the decision was on collateral grounds. Once the opinion is reached on the basis of materials on record, the order cannot be treated to be arbitrary"
23) In the matter of Union of India Vs. Dulal Dutt8, the Supreme Court observed as under-
"An order of compulsory retirement 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. 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. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of FR 56(j) or a rule corresponding to it."
And further, "An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. Principles of natural justice have no place in the context of an order of compulsory retirement. Since the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the audi alteram partem rule of the natural justice in such a case."
(see- Baikuntha Nath Das vs. Chief District Medical Officer, Baripada9 )
24). In the matter of K. Kandaswamy v. Union of India10, the Hon'ble Supreme Court observed as under-
"9. While exercising the power under Rule 56(j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the government employee is in the public interest, court would not interfere with the order".
25) In the matter of State of U.P. v. Vijay Kumar Jain11, the Supreme Court observed as under-
"15. The aforesaid decisions unmistakably lay down that the entire service record of a government servant could be considered by the Government while exercising the power under FR 56(c) of the Rules with emphasis on the later entries. FR 56(c) of the Rules read with Explanation (2), empowers the State Government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead wood need to be removed to maintain efficiency in the service. Integrity of a government employee is foremost consideration in public service. If a conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest. The Government's right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the Government is entitled under Fundamental Rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to the Screening Committee or the State Government, as the case may be, to find out whether a government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the Government is expected to form its opinion whether an employee is to be compulsorily retired or not.
16. Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the Government while considering a case for compulsory retirement of a government servant".
26) So far as the case in hand and the matter in dispute is concerned, it is necessary to quote the Fundamental Rule 56 (j) which reads as under:
"56(j) Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice:
(i) If he is, in Group `A' or Group `B' service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) In any other case, after he has attained the age of fifty-five years."
27) FR 56 (j) contemplates premature retirement after an employee in Group `A' or Group `B' has attained the age of 50 years when he has entered into service before attaining the age of 35 years. In the present case, the case of the petitioner was considered after attaining the age of 50 years and there is no condition in FR 56 (j) that review should be done six months before the Government servant attains the age of 50 years. The common thread running into the decisions cited above clearly shows that, if a conduct of a Government employee becomes unbecoming, in the public interest or obstructs the efficiency of public services, the government has an absolute right to compulsory retire such an employee in public interest. In the present case, it is not the case of the petitioner that, there was any malafide in the order or the order was not in public interest or it was for collateral purpose. Thus, I am constrained to hold that the impugned order retiring the petitioner prematurely is bona fide and in public interest.
28) For the reasons hereinabove, this petition is dismissed. Costs easy.
JUDGE