Andhra HC (Pre-Telangana)
A.S. Bhatti vs The Union Of India (Uoi), Ministry Of ... on 16 November, 1992
Equivalent citations: 1993(1)ALT11
ORDER Motilal B. Naik, J.
1. The petitioner seeks a writ of Mandamus or any appropriate writ, order or direction in the nature of a writ declaring the order dt.15-5-1989, compulsorily retiring the petitioner from service as Asst. Commandant, C.I.S.F. issued by the third respondent, as arbitrary, illegal and violative of Articles 310 and 311 of the Constitution of India. The petitioner also seeks a further direction to declare Rule 56(J) of the Fundamental Rules as violative of principles of natural justice and to direct the respondents not to compulsorily retire the petitioner from service till he attains the age of superannuation.
2. The case of the petitioner is that after joining the service in C.I.S.F., he married a girl from a rich family. His parent-in-law did not like the petitioner to continue in service and desired that the petitioner should resign and join their business in England. The petitioner rejected the offer and maintained to have his independence. On account of his refusal to the offer of his in-law, the parent- in-law of the petitioner tried to bring pressure on the petitioner and the matrimonial life of the petitioner also became miserable. The petitioner categorically states that the former Director General of C.I.S.F., one Mr. Surendra Nath who was said to be a close friend of his father-in-law, put pressure on him and tried to see that the petitioner quits service. To achieve the object, it is stated that few Officers who are superiors to the petitioner were influenced. On account of that influence, some adverse entries in the Service Register of the petitioner were also made during the years 1982-1984 with mala fide intention to spoil the records, so that the petitioner could quit the job. Later on it is averred that he was transferred to various places such as Bokaro, Bhopal, Calcutta and later on he was posted in C.I.S.F., Unit VPT, Visakhapatnam in February, 1985. Then afterwards, the petitioner had no problem on account of Surendra Nath's retirement from service and no influence could be exerted on the officials.
3. While so, it is stated by the petitioner that the order impugned retiring him at the age of 50 years, was issued, basing on the earlier confidential reports for the period from 1982-1984, which according to the petitioner, the officials were influenced by the Ex-Director General Mr. Surendra Nath. It is stated that the entire service record from the year 1972 onwards, excepting for a brief period, was good and no charges of enquiry or corruption or dishonesty against him were framed. On the other hand, it is stated that the petitioner earned several citations commending his service. The learned Counsel for the petitioner contends that though the respondents have power under Rule 56(J) of the Fundamental Rules to retire any official on his reaching fifty years of age by reviewing his performance, the authorities should, while exercising discretion, have to take into account the various aspects and then retire him.
4. On behalf of the respondents, a detailed counter has been filed refuting the allegations. In the counter, it is stated that the petitioner's case was considered by the duly constituted Committee in this regard and the Committee, after due consideration of his relevant service records, found that the petitioner cannot be continued in service beyond fifty years of his age. Therefore this recommendation was accepted by the prescribed authority. The petitioner has been prematurely retired on the basis of unsatisfactory record of his service. It is denied in the counter that there was any influence brought on the higher officials, as alleged by the petitioner. It is further stated in the counter that the previous record in the last ten years is totally unsatisfactory and shows that the petitioner was ineffective in service and therefore in the public interest, the petitioner was retired, after reaching fifty years of age. At para (8) of the counter, it is stated that the integrity of the petitioner is doubtful and therefore the respondents had no option than to retire the petitioner at the age of fifty years, under the powers vested to the authorities in Fundamental Rule 56(J), after following the necessary procedure.
5. Sri M.S.R. Subrahmanyam, learned Counsel for the petitioner states that according to the petitioner's assertion, his performance was quite satisfactory from 1972 onwards, excepting for a brief period from 1982-1984. The reason for this, according to the petitioner is that the matrimonial life of the petitioner has brought him the difficulties as the father-in-law of the petitioner was interested to get the services of the petitioner into their business, which the petitioner declined to accept. It is further argued that the matrimonial life is not bed of roses to the petitioner and is rocked by unpleasantness and disputes as his wife has also deserted him and staying with her parents. It is further submitted that the petitioner has two children to be educated and bring them up and therefore retiring the petitioner on some stray observations made here and there in the confidential reports, is arbitrary and violative of principles of natural justice. At the most under the Fundamental Rules, the petitioner could have been reverted to the position, which he earlier occupied prior to the promotion to the present position. The action of retiring a person prematurely would hamper the education of his children and the age of 50 years is not proper age to retire when he can render service with equal vigour and sincerity till he attains the age of superannuation. Under these circumstances, the learned Counsel submits that the order of retirement impugned in this writ petition, is not on merits and therefore the impugned order deserves to be set aside.
6. Sri K. Rajanna, learned Additional Standing Counsel for Central Government on the contrary asserts that the past records would go to show that the petitioner is not found suitable and in public interest, he was retired at the age of fifty years. The Review Committee has gone into this aspect and has recommended to the authority competent to retire the petitioner at the age of fifty years. The competent authority basing on the report of the Review Committee, considered the pros and cons of the facts of the case and passed the impugned order. It is further contended by Sri Rajanna that the persons who are made to retire as per Rule 560) of the Fundamental Rules are found to be not worth and therefore continuing such persons any more in service is not in public interest and therefore the impugned order was passed. No doubt, Fundamental Rule 56(J) empowers appropriate authority with an absolute right to retire the employees at the age of fifty years, if it is necessary to do so in the interest of public. But the question still remains to be seen is as to whether such authority while exercising the power vested under Rule 560) of the Fundamental Rules, has properly taken into consideration the entire material and whether the material is sufficient to suggest such an action. Clause (6) of Rules contemplates that in case the appropriate authority after review, comes to the conclusion that the Officer is not fit for being retained in the present post, could consider to retain in next lower post from which he was promoted, by giving a prescribed notice to ascertain his views on this aspect and in the event of the person concerned is not inclined to accept such position, then the authorities can impose the final order of retirement.
7. The only allegation as per averments made in the counter which prompted the authorities to come to the conclusion that petitioner's services are no more required and he has to be retired in public interest is in my view on the ground that his integrity was found to be disputable. I have verified the entire record of the petitioner placed before me by the respondents. It is evident that for the year 1972-73, in the assessment column, it is indicated as to his performance as 'average' and in the integrity column, it is stated as 'honest and loyal' and nothing adverse was reported for the period from 1-4-1974 to 16-7-1976 and he was found to be good and in integrity column, it is indicated as 'satisfactory'. For the year 1981, in performance column, it is shown as 'good'. For the period from 1-4-1987 to 31-3-1988 in the assessment column, it is shown as 'good'. In the year 1985-86, the performance column is shown as 'good'. But for the period from 1982 to 1984, the assessment column indicates as 'below average' and insofar as integrity for the year 1983 is concerned, it is shown as 'doubtful'. On the contrary for the year 1988, the integrity column is indicated as 'good'. Sri C. Ramaswamy, I.P.S., Deputy Inspector General of Police, C.I.S.F., South Zone, Madras has appreciated the service of the petitioner and it is evident from the record at page No. 197. From the record it is also found that a letter of appreciation by way of merit citation has been issued by the Commandant, C.I.S.F., on 31-3-1989 and it categorically shows that his performance was very good. Thus the entire record from the year 1972 onwards placed before me would show excepting for a brief period from 1982 to 1984, the performance of the petitioner is average and as far as integrity is concerned, for some years it is indicated as good and for some years, it is indicated as average. Nothing adverse was mentioned, excepting for the period of 1983. That being the picture of background of this petitioner, I am not inclined to accept the submission made on behalf of the respondents as to the petitioner's integrity merely saying as doubtful and therefore in public interest, he is retired. The powers vested in an authority have to be exercised in a purposeful manner, but not in a way affecting the interest of a person, which is unknown to service jurisprudence. When a person is condemned, the authority arriving at such conclusion, should have such material to come to that conclusion. Rule 56(J) of the Fundamental Rules empowers the competent authority to review the entire performance of the Government Servant who attains the age of fifty years and in their opinion, if it is found that continuance of such person over and above fifty years of age, would be detrimental to the interest of the Department, then the authority is entitled to retire such person at the age of 50 years. To advert to such a drastic step, it is necessary that sufficient material must be there before the competent authority. On the contention of the respondents that the Review Committee which went into the entire aspect recommended the competent authority to retire the person, I am of the view that the Review Committee has no sufficient material, which would indicate that the continuation of the petitioner in service would affect the interest of the society. In this case, the petitioner has made categorical assertion that because of his marriage, he had to undergo certain displeasures and this fact is evident from the records placed before me. For the year 1982-83, the confidential report would indicate that the performance of the petitioner was below average and the integrity of the petitioner was shown as doubtful. Precisely, this is the specific allegation of the petitioner. The confidential reports other than the particular period of 1982 to 1984, would indicate average and above average and for some years, his performance was good and therefore, it is asserted by the petitioner, this entry in the relevant period is made with mala fide intention. Viewing the case from the material placed before me, I am inclined to accept the contention of the petitioner that the authorities have not displayed fair play towards the petitioner, during the period from 1982 to 1984. The Rules contemplate that before a person is retired at the age of fifty years, it is obligatory on the part of the authorities to consider the question of reverting him to the post, from where he was promoted to the present post, by obtaining necessary consent from the Government servant and in case such Government servant opts to continue in the reverted post and then the authorities could allow him to continue upto the age of fifty eight years, in the reverted position. Having the entire background of this case, in my considered opinion, the respondents should have taken recourse to reverting him to next lower position from where he was promoted.
8. I am informed by the Counsel for the petitioner that his two children are studying in the schools of Visakhapatnam and they are to be brought up as disciplined citizens of mis country and that therefore he should have sufficient resources to bring them up as befitting citizens of this country. When a person's matrimonial life is rocked to winds and the employment avenue is also taken away, such a person could naturally, be frustrated. In the circumstances, he cannot also bring up his children who are staying with him and who are solely depending on him, in a better way. When the human instinct is a point, decisively involved in a case of this nature, ignoring these aspects, would jeopardise the spirit of harmony in the society at large. The discretion though vested in the authorities, it should be exercised in a proper concept than basing on stray observations made here and there about the character and conduct of a person. In these circumstances, I am convinced that the petitioner has made out a case warranting interference of this Court. Accordingly, I set aside the order dt.15-5-1989, impugned in this Writ Petition. Consequently, I direct the respondents to continue the petitioner in the capacity he was holding as on the date of his retirement, alternatively, the respondents, so think, shall explore the possibilities of accommodating the petitioner in the next lower category, by seeking the consent of the petitioner for such action, as provided in the Rules.
9. Sri K. Rajanna, learned Standing Counsel for the respondents submits that the possibility of accommodating a Government official by reverting him to the next lower position is now taken away and that therefore the petitioner cannot alternatively be considered for reverting him. I am not convinced on this aspect. The Rules as on the date of retirement which were in force, are to be taken into account and subsequent amendments which have been brought into in the relevant rules, cannot have retrospective effect.
10. The petitioner was made to retire at the age of fifty years through the proceedings dt.15-5-1989. Had the petitioner been continued in service, he would normally retire on 15-5-1997. The petitioner has already lost more than three years of service, which is very precious. In these circumstances, I direct the respondents to take steps as indicated by me within one month from the date of receipt of this order. However, it is made clear, for the purposes of granting retirement benefits, the entire service has to be taken into consideration, without any break in service.
11. The Writ Petition is accordingly, allowed. No order as to costs.
12. Immediately after the judgment is pronounced, Sri Rajanna.. learned Standing Counsel for Central Government, sought clarification from this Court on the aspect of payment of back wages, if any, to the petitioner. On this aspect, I am quite clear in my mind when I passed the order. In the penultimate paragraph of the order, I have stated that the petitioner's services should be treated as continuous for the purpose of granting retrial benefits on his reaching the age of superannuation. That means, the petitioner is not entitled to any monetary benefits for the period from the date of his compulsory retirement from service till the date of his joining duty on being accommodated by the respondents by virtue of this order.