Captain Pramod Kumar Bajaj vs U.O.I.Thru Revenue Secretary North ... on 31 May, 2022

[Cites 30, Cited by 0]

Allahabad High Court

Captain Pramod Kumar Bajaj vs U.O.I.Thru Revenue Secretary North ... on 31 May, 2022

Bench: Devendra Kumar Upadhyaya, Saroj Yadav





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 2
 

 
Case :- WRIT - A No. - 24856 of 2020
 
Petitioner :- Captain Pramod Kumar Bajaj
 
Respondent :- U.O.I.Thru Revenue Secretary North Block New Delhi And Anr.
 
Counsel for Petitioner :- In Person,Anupam Verma
 
Counsel for Respondent :- A.S.G.,Ashwani Kumar Singh
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Mrs. Saroj Yadav, J.

1. By instituting these proceedings under Article 226 of the Constitution of India the petitioner seeks to challenge the judgment and order dated 09.12.2020 passed by the Central Administrative Tribunal (herein after referred to as 'CAT') whereby Original Application bearing Number OA/100/703/2020 filed by the petitioner, has been dismissed.

At this juncture itself, we may note that by filing the aforesaid Original Application before the CAT the petitioner had challenged the order dated 27.09.2019 passed under Fundamental Rule 56 (j) [hereinafter referred to as 'FR 56(j)'] whereby he was compulsorily retired from service. In the said OA the petitioner had also challenged the order dated 02.01.2020 whereby the Representation Committee, constituted in terms of Office Memorandum dated 23.08.2019 issued by the Department of Personnel and Training (hereinafter referred to as 'DoPT') had rejected his representation preferred by him against the order of compulsory retirement dated 27.09.2019.

2. Heard Shri S. K. Kalia, learned Senior Advocate, assisted by Shri Anupam Verma, Advocate for the petitioner and Shri Hanu Bhashkar, learned counsel representing the respondents. We have also perused the records available before us.

3. Before adverting to the rival submissions made by the learned counsel appearing for the respective parties, we may note the facts of the case in brief, which are as follows:-

4. Having served the Indian Army as a Commissioned Officer, the petitioner appeared in the Civil Services Examination in the year 1989 and having been selected was allocated to the 1990 batch of Indian Revenue Service. He held various positions in the Income Tax Department and was regularly promoted on the higher posts. He is said to have been empanelled for being appointed as a Member of Income Tax Appellate Tribunal (hereinafter referred to as 'ITAT'), however, on account of several factors, he could not be appointed to the said post which led the petitioner to file OA 95/2016 before the CAT with the prayer to direct the respondents therein to appoint him to the post of Member, ITAT. The said OA was disposed of by means of the judgment and order dated 10.02.2017 with the direction to the respondents to resubmit the alleged adverse IB Report to the Selection Committee for taking a final view in respect of his appointment as a Member of ITAT. The judgment dated 10.02.2017 passed by the CAT became subject matter of challenge in Writ Petition No.8648 (S/B) of 2017 filed by the Union of India which was disposed of by means of an order dated 30.05.2017 passed by a Division Bench of this Court without any interference in the judgment dated 10.02.2017 passed by the CAT. The Court further directed the Union of India to act in accordance with the directions of the Court and get the entire process of reconsideration by the Selection Committee completed within three months. Further direction was also issued by this Court directing that appropriate action and the recommendation of the Selection Committee shall be taken within four months thereafter.

5. The judgment and order dated 30.05.2017 passed by this Court was challenged by the Union of India by instituting Special Leave to Appeal (C) No.22596 of 2017 which too was missed by Hon'ble Supreme Court by means of an order dated 15.11.2017. The Selection Panel which comprised of Hon'ble Supreme Court judge is said to have reiterated the selection of the petitioner to the post of Member, ITAT on 26.04.2018. However, before the said reiteration by the Selection Panel, a vigilance inspection was conducted on 29.11.2017 and on the basis of the said inspection a show cause notice was issued to the petitioner on 31.01.2018. Challenging the said show cause notice dated 31.01.2018, the petitioner instituted Original Application No.77 of 2018 wherein an interim order was granted by the CAT to the effect that the show cause notice will not come in the way of consideration of the petitioner for appointment to the post of Member, ITAT.

6. Thereafter on 21.04.2018 vigilance clearance was withheld and this decision was challenged by the petitioner by filing OA No.137/2018 before the CAT. In this Original Application the CAT granted an interim order on 04.05.2018 providing therein that withholding vigilance clearance will not come in the way of consideration of the petitioner for appointment to the post of Member, ITAT. Before the said interim order dated 04.05.2018 was passed by the CAT, on 11.04.2018 the petitioner was kept in "Agreed List". Against this action of the respondents the petitioner filed Original Application No.279 of 2018 wherein an interim order was granted. The Original Application Nos.279 of 2018 and 137 of 2018 were decided by a common judgment and order passed by the CAT on 06.03.2019. By the said judgment and order dated 06.03.2019 the CAT concluded that it is difficult to uphold that the vigilance status of the petitioner has been assessed to the worthy of being such that needs to be withheld with respect to the recommendation for his appointment as Member, ITAT. The CAT quashed inclusion of the name of the petitioner in Agreed List and also consequential proceedings as well as denial of vigilance clearance. The CAT further directed the respondents to forward the name of the petitioner to the appropriate authority for selection/appointment to the post of Member, ITAT.

7. The petitioner had instituted Contempt Petition No.2681 of 2017 before this Court wherein notices were issued to the Secretary, DoPT and Department of Law and Justice, Union of India. In Contempt Petition No.2681 of 2017, this Court permitted impleadment of the then Chairman, Central Board of Direct Taxes (herein after referred to as 'CBDT') by means of the order dated 13.08.2019 and accordingly issued notices to the newly impleaded the then Chairman of CBDT to show cause as to why he may be not punished for willful disobedience of the order dated 30.05.2017 passed by this Court in Writ Petition No.8648 (S/B) of 2017.

8. However, on 17.06.2019 a charge-sheet for departmental proceedings was issued against the petitioner but before conclusion of the departmental proceedings, on the basis of the said charge-sheet dated 17.06.2019, the petitioner was compulsorily retired on 27.09.2019. The petitioner represented against the order of compulsory retirement before the Representation Committee which was considered in its meeting held on 06.12.2019 and the Representation Committee arrived at a conclusion that no interference was warranted to be made in the order of compulsory retirement dated 27.09.2019 passed by the Central Government. The decision of the Representation Committee is embodied in the order dated 02.01.2022. It is these two orders, namely, the order of compulsorily retiring the petitioner, dated 27.09.2019 and the order dated 02.01.2022 which were challenged by the petitioner before the CAT by filing Original Application No.100/703/2020 which has been dismissed by means of the judgment and order dated 09.12.2020. The petitioner has, thus, now challenged the said judgment and order dated 09.12.2020 passed by the CAT.

9. So far as the facts and events as narrated above are concerned, there does not appear to be any dispute between the parties, however, learned counsel appearing for the parties have made their submissions for and against the order of compulsory retirement, order rejecting the representation made by the petitioner against the order of compulsory retirement and the judgment of the Tribunal.

10. Shri S. K. Kalia, learned Senior Advocate representing the petitioner has submitted that the power exercised by the respondents under FR 56 (j) compulsorily retiring the petitioner has not been exercised in a bona fide manner; rather the order of compulsory retirement suffers from vice of mala fides. It has further been argued that the power to compulsorily retiring the petitioner in this case been exercised for collateral purposes, that is, to excluded the petitioner from being appointed as Member of ITAT and in fact the order of compulsory retirement is not order simplicitor passed in public interest but it is an order passed by way of punishment. It has also been argued by Shri Kalia that the relevant material was not taken into account while passing the order of compulsory retirement; rather completely extraneous material and matters were considered with "ulterior motive". It has also been argued that though a departmental enquiry was instituted and a charge-sheet was also issued against the petitioner on 17.06.2019, however, instead of completing the said enquiry, the petitioner has been retired on 27.09.2019, thus, the order compulsorily retiring the petitioner is unlawful.

11. To bring home the grounds of challenge to the order of compulsory retirement, learned Senior Advocate has stated that the impugned action on the part of the respondents against the petitioner has in fact precipitated for the reason that in the contempt petition instituted by the petitioner before this Court, the contempt notices were issued against the Chairman of CBDT and as such the entire exercise undertaken by the respondents which resulted in compulsory retirement of the petitioner is laced with malice. It has also been argued that the facts of the case would establish that all along it has been the endeavour of the respondents to block the appointment of the petitioner to the post of Member, ITAT and it is only for this reason that the respondents conducted vigilance inspection and thereafter withheld the vigilance clearance and also kept the petitioner in the Agreed List. It has been argued that all the aforesaid actions namely, the vigilance inspection, not granting vigilance clearnace and keeping the petitioner in Agreed List were since challenged and such actions have been quashed by the CAT, the respondents got annoyed and thus for these reasons and also for the reason that contempt notices were issued to the Chairman, CBDT, the order of compulsory retirement has been passed.

12. In this view, the submission is that the impugned action is mala fide and exercise of power of compulsory retirement has clearly been taken recourse to for a collateral purpose. Shri Kalia, learned Senior Advocate has laid a great emphasis on the provisions contained in Office Memorandum dated 21.03.2014 issued by the DoPT on the subject: "Strengthening of Administration and Periodical Review under FR56/Rule 48 of Central Civil Services (Pension) Rules, 1972". Drawing our attention to clause 5 of the said Office Memorandum, it has been argued on behalf of the petitioner that the Review Committee which makes recommendations for compulsorily retiring a government employee is under obligation to follow the criteria laid down in the said Office Memorandum dated 21.03.2014. It has, thus, been stated that clause 5 of the said Office Memorandum provides that, (a) employees whose integrity is doubtful are to be retired, (b) employees who are found to ineffective will also be retired, however, consideration in identifying such ineffective employees should be fitness/competence to continue in the post being held by such employee.

13. Shri Kalia has also taken us to sub clause (d) of clause 5 of the said Office Memorandum and has submitted that no employee can be retired on the grounds of ineffectiveness if he would be retiring on attaining the age of superannuation within a period of one year from the date of consideration of his case. It has further been stated that sub clause (d) further provides that no employee should be retired on grounds of ineffectiveness if he is retiring on superannuation within a period of one year, however, in a case where there is a sudden and steep fall in the competence, efficiency or effectiveness of an officer it may be open to retire the employee prematurely. Clause 5 of the Office Memorandum issued by the DoPT on 21.03.2014 is extracted herein below:-

"The criteria to be followed by the committee in making their recommendations would be as follows:

(a) Government employees whose integrity is doubtful, will be retired.

(b) Government employees who are found to be ineffective will also be retired. The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he/she is holding.

(c) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years or where he has been promoted to a higher post during that 5 year period, his service in the highest post, has been found satisfactory.

Consideration is ordinarily to be confined to the preceding 5 years or to the period in the higher post, in case of promotion within the period of 5 years, only when retirement is sought to be made on grounds of ineffectiveness. There is no such stipulation, however where the employee is to be retired on grounds of doubtful integrity.

(d) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case.

Ordinarily no employee should be retired on grounds of ineffectiveness if he is retiring on superannuation within a period of one year from the date of consideration of the case. It is clarified that in a case where there is a sudden and steep fall in the competence, efficiency or effectiveness of an officer, it would be open to review his case for premature retirement.

The above instruction is relevant only when an employee is proposed to be retired on the ground of ineffectiveness, but not on the ground of doubtful integrity. The damage to public interest could be marginal if an old employee, in the last year of service, is found ineffective; but the damage may be incalculable if he is found corrupt and demands or obtains illegal gratification during the said period for the tasks he is duty bound to perform."

14. Based on the aforesaid provisions contained in clause 5 of the Office Memorandum dated 21.03.2014, it has been contended by the learned Senior Advocate that the petitioner was to retire on attaining the age of superannuation on 30.01.2020 whereas the order of compulsory retirement has been passed on 27.09.2019, that is to say, he was to retire within four months from the date he has compulsorily been retired and as such the provisions contained in the Office Memorandum dated 21.03.2014 would apply with full force. His submission is that in case there is nothing on record to suggest that the petitioner's integrity was doubtful, nor was it noticed, supported by any material, that there has been a sudden and steep fall in the competence, efficiency or effectiveness of the petitioner, he could not have been compulsorily retired. Buttressing the said arguments, it has been stated that the petitioner had not earned any adverse remarks; rather he had earned good and very good remarks in the entry during last five years of his service and that it is only in recent past prior to compulsorily retiring him that he was given overall grade as 9 in his annual assessment and hence it could not be concluded that there was any sudden and steep fall in his competence or efficiency. Further submission is that no material had surfaced on the basis of which it could be concluded that there was any sudden and steep fall in his competence, efficiency or effectiveness so as to attract paragraph 2 of sub clause (d) of clause 5 of the Office Memorandum dated 21.03.2014 to retire the petitioner compulsorily.

15. In sum and substance, the argument advanced by the learned Senior Advocate representing the petitioner is that the impugned action which resulted in compulsory retirement of the petitioner has been effectuated on account of malice for the reasons as aforesaid and further, the exercise to compulsorily retire the petitioner in this case was conducted to get rid of an "inconvenient" officer. In this view, the submission is that the power to compulsory retirement, has not been undertaken in public interest, that is to say, not for the purpose for which is it vested in the Central Government but for the collateral purpose of removing an inconvenient officer and to block his appointment as Member, ITAT. It has also been argued that the representation preferred by the petitioner against the order of compulsory retirement has illegally been rejected.

16. Drawing our attention to paragraph 5.1.3 of the order dated 02.01.2020, it has been stated that the order makes a mention that charge-sheet issued against the petitioner was taken into consideration which makes the order of compulsory retirement punitive.

17. The petitioner challenged the charge-sheet by filing an Original Application before the Central Administrative Tribunal, however, OA was dismissed by the CAT on 17.12.2019. Against the order dated 17.12.2019 passed by the CAT, the petitioner has instituted Writ Petition No.36879 of 2019 before this Court wherein an order has been passed in April, 2020 staying the charge-sheet. In view of the aforesaid contentions and arguments, it has been urged by the learned counsel for the petitioner that the writ petition deserves to be allowed and the order compulsorily retiring the petitioner is liable to be quashed.

18. Opposing the writ petition, Shri Hanu Bhashkar, learned counsel representing the respondents has submitted that requirement of FR 56(j) has been complied with by the respondents which is applicable in case an employee had reached at the age of 50 years. He has further argued that the order of compulsory or premature retirement is not in the nature of punishment but to weed out the dead wood and that such exercise is necessary to streamline the administration and also to evaluate whether the employee is fit to remain in public service. It has further been argued that the scope of judicial review of an order of compulsory retirement is very limited and it is settled law that the writ petition, challenging the judgment of CAT, under Article 226 of the Constitution of India is not an appeal.

19. Elaborating the scope of judicial scrutiny by this Court under Article 226 of the Constitution of India, it has been asserted that in such matters this Court can only see (a) as to whether it is a case of mala fide, (b) as to whether it is a case of the order under challenge being based on no material and (c) as to whether there is an element of arbitrariness on the part of the authorities concerned while exercising the powers of compulsorily retiring an employee. Further submission is that while judicially reviewing such matters, this Court can see as to whether there has been any legal flaw in the decision making process and the decision in itself cannot be subjected to judicial scrutiny. Shri Hanu Bhashkar has further argued that in case a plea of bias or mala fide is taken to challenge an action, the person against whom the bias or mala fide is alleged, needs to be impleaded as a party to the proceedings and in this case no officer of the respondents has been impleaded and accordingly plea of mala fide is not tenable.

20. It has also been argued that the decision to compulsorily retire the petitioner was taken by the Government of India on the basis of recommendation made by the Review Committee comprising of higher officers of the Department and further that the representation made by the petitioner against the order of compulsory retirement was considered by the Representation Committee which comprises of higher officers of the Government in terms of the Office Memorandum dated 27.08.2019 issued by the DoPT. By the said Office Memorandum, the Representation Committee was constituted which comprised of Secretary of the Department of Health and Family Welfare, Joint Secretary, Cabinet Secretariat and one Member to be nominated by the Cadre Controlling Authority. Submission, thus, is that in view of the constitution of the aforesaid Representation Committee which comprised of higher officer, it cannot be said that the Members of the Representation Committee have also been biased and have acted with mala fide. Contention of Shri Bhashkar, thus, is that there cannot be any "institutional mala fide" inasmuch as even if it is presumed that some or other officer of the Department bore some grudge against the petitioner, all the officers who were part of the Review Committee and those who were members of the Representation Committee acted with malice.

21. It has also been submitted by Shri Bhashkar that there is nothing on record to show that the impugned action is based on arbitrary or mala fide exercise and that it was not the petitioner alone who was compulsorily retired; rather along with him 64 other government officers were also compulsorily retired who served the Ministry of Finance, CBDT & GST etc. It has been stated on behalf of the respondents that consideration in respect of the compulsory retirement has been made at different stages and the petitioner cannot be permitted to plead that at every stage the exercise which resulted in his compulsory retirement was based on mala fide. It is also the case of the respondents that in the facts of the case, it can not be said that the authorities concerned did not apply their mind or that it was a case of there being no material. His submission further is that from the available records it is established beyond any doubt that the exercise undertaken to compulsorily retirement the petitioner has been carried out in public interest and all the aforesaid aspects have been considered by the Central Administrative Tribunal while dismissing the Original Application filed by the petitioner. Accordingly, his submission is that the order of compulsory retirement and the order rejecting the representation of the petitioner have been passed on the relevant considerations and thus the judgment passed by the CAT dismissing the Original Application filed by the petitioner does not warrant any interference by this Court.

22. We have noted the facts as aforesaid on the basis of records available before us and have also given our thoughtful consideration to the submissions made by the learned counsel representing the petitioner and respondents.

23. The thrust of the argument on behalf of the petitioner, as noticed above, is that the order of compulsorily retiring the petitioner has been passed for a collateral purpose and not for the purpose for which the powers under FR 56 (j) are vested in the Central Government. The reasons of the alleged mala fide have also been noted by us in the preceding paragraphs of this judgment.

24. The second limb of the argument raised on behalf of the petitioner is that considering his past record since his integrity was not found doubtful and there is no material to show sudden and steep fall in his competence/performance/effectiveness, he could not have been compulsorily retired for the reason that at the time of consideration of his case under the FR 56 (j) he was to retire within a year from the date of such consideration. The said submission is based on the provisions contained in Office Memorandum issued by the DoPT on 21.03.2014.

25. Another argument made on behalf of the petitioner is that compulsory retirement cannot be taken recourse to with a view to by-pass the disciplinary proceedings.

26. Learned counsel for the petitioner has placed reliance on the judgments in the case of State of Gujarat vs. Umedhbhai Patel, reported in (2001) 3 SCC 314 to submit that considering the facts, the petitioner could not have been compulsorily retired in view of the law laid down in this case. For asserting that compulsory retirement cannot be based on extraneous factors; rather it is only the relevant factors which may be considered, reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Ram Ekbal Sharma vs. State of Bihar and another, reported in (1990) 3 SCC 504. Learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Madhya Pradesh State Co-operative Dairy Federation Ltd. and another vs. Rajnesh Kumar Jamindar and others, reported in (2009) 15 SCC 221 to strengthen his submission that compulsory retirement cannot be resorted to for an unauthorised purpose. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Allahabad Bank Officer Association and others vs. Allahabad Bank and others, reported in (1996) 4 SCC 504 wherein it has been held that compulsory retirement cannot be punitive in nature. Petitioner also relies on the judgment of Hon'ble Supreme Court in the case of Nand Kumar Verma vs. State of Jharkhand and others, reported in (2012) 3 SCC 580, wherein it has been held that importance should be given to the opinion and remarks made by the immediate superior officer in respect of the integrity and functioning of the officer concerned. The petitioner also places reliance on the judgments of Hon'ble Supreme Court in the case of Swami Saran Saksena vs. State of Uttar Pradesh, reported in (1980) 1 SCC 12, Shyam Lal vs. State of U.P. and others, reported in AIR 1954 SC 369, J. D. Srivastava vs. State of M.P. and others, reported in (1984) 2 SCC 8, Smt. S.R. Venkataraman vs. Union of India and another, reported in (1979) 2 SCC 491, Brij Mohan Singh Chopra vs. State of Punjab, reported in (1987) 2 SCC 188 and Union of India and another vs. Balbir Singh, reported in (1998) 5 SCC 216.

28. On a careful analysis of the submissions made by the learned counsel for the parties, what we find is that it is not in dispute that scope of judicial review in a matter relating to compulsory retirement in exercise of our jurisdiction under Article 226 of the Constitution of India is limited. Hon'ble Supreme Court in the case of Umedhbhai Patel (supra) has crystallized certain principles in respect of law related to compulsory retirement. In paragarph 11 of the report, which is extracted herein below :-

"11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure."

29. In the case of Allahabad Bank Officer Association & Ors (Supra) Hon'ble Supreme Court has clearly held that power to compulsory retire a government servant is one of the facets of the doctrine of pleasure incorporated under Article 310 of the Constitution of India and that the object is to 'weed out' the 'dead wood' in order to maintain efficiency in service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in service. Para no. 5 of the said judgment in the case of Allahabad Bank Officer Association & Ors (supra), is relevant in this regard, which is quoted herein below :-

"5. The power to compulsorily retire a government servant is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration. Generally speaking, Service Rules provide for compulsory retirement of a government servant on his completing certain number of years of service or attaining the prescribed age. His service record is reviewed at that stage and a decision is taken whether he should be compulsorily retired or continued further in service. There is no levelling of a charge or imputation requiring an explanation from the government servant. While misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held -- and there is no duty to hold an enquiry -- is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal they form the very basis on which the order is made, as pointed out by this Court in Shyam Lal v. State of U.P. [(1955) 1 SCR 26 : AIR 1954 SC 369] and State of Bombay v. Saubhagchand M. Doshi [AIR 1957 SC 892 : 1958 SCR 571] . Thus, by its very nature the power to compulsorily retire a government servant is distinct and separate from the power to punish him by way of removal, dismissal etc. for misconduct. A government servant who is compulsorily retired does not lose any part of the benefit that he has earned during service. Thus, compulsory retirement differs both from dismissal and removal as it involves no penal consequences. Though compulsory retirement deprives a government servant of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get pension, that cannot be regarded in the eye of law as punishment as pointed out in the case of Shyam Lal [(1955) 1 SCR 26 : AIR 1954 SC 369] and Union of India v. M.E. Reddy [(1980) 2 SCC 15 : 1980 SCC (L&S) 179] . Thus, compulsory retirement differs from dismissal and removal both in its nature and incidence or effects. Therefore, compulsory retirement is not considered prima facie and per se a punishment and does not attract the provisions of Article 311. This Court in a series of decisions starting with Shyam Lal case [(1955) 1 SCR 26 : AIR 1954 SC 369] has held that compulsory retirement is neither a punishment nor a stigma; and, that can now well be regarded as settled legal position. But, if any stigma is attached to the order of compulsory retirement then it may be treated as an order of punishment in reality. So also, if a formal enquiry is made on an allegation of misconduct and a finding holding him guilty is recorded and thereafter the order of compulsory retirement is passed then such an order even when it does not contain any allegation or a stigmatic statement may be regarded as an order of punishment, attracting provisions of Article 311. The reason is that the court would infer in such cases that the real intention of the Government was not to compulsorily retire its employee but to punish him."

30. It is also well settled principle of law that order of compulsory retirement is not a punishment; neither does it convey any stigma or misbehavior of the employee concerned.

31. In the case of Baikunthanath Das and Others Vs Chief District Medical Officer, Baripada & Ors, reported in MANU/SC/0193/1992 in paragraph 32 of Hon'ble Supreme Court has held as under :

32.The following principles emerge from the above discussion:

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

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

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter -- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon 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 29 to 31 above.

32. In the case of Baikunthanath Das and Others (supra), Hon'ble Supreme Court has clearly held that judicial scrutiny by a superior court in the context of an order compulsorily retiring a government employee is permissible only once the court is satisfied that the order is based on (a) malafide or (b) that it is based on no evidence or (c) it is arbitrary in the sense that no reasonable person would form an opinion of compulsorily retiring an employee on the basis of available material.

33. Interference with an order of compulsory retirement is found permissible only on the aforesaid grounds as categorically held by Hon'ble Supreme Court in the case of Baikunthanath Das and Others (supra).

34. Hon'ble Supreme Court in the case of Union of India Versus Col. J.N. Sinha and Ors, reported in (1970) 2 SCC 458 has held as under:

"8. Fundamental Rule 56(i) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it". It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.

9. Now corning 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 farmed 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. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned Rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is, in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.

10. It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further, a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment."

35. In State of Orissa vs. Ram Chandra Das, reported in (1996) 5 SCC 331 in paragraph 7 Hon'ble Supreme Court has held as under:

7. It is contended for the respondent that adverse entries for the two years referred to earlier and pending departmental proceedings would not be sufficient to compulsorily retire the government servant on the premises that after promotion they would become irrelevant and minor penalty was imposed. It is true that the government servant was allowed to cross the efficiency bar to enable him to avail of the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made are after promotion. Even otherwise, the remarks form part of service record and character roll. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and circumstances to act of misconduct, nevertheless it remains part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. The material question is whether the entire record of service was considered or not? It is not for the court/tribunal to see whether the decision of the Government to compulsorily retire the government servant is justified or not. It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits.

36. Thus, when we consider the submissions canvassed on behalf of the petitioner, we do not find ourselves in agreement with the submissions of learned Senior Advocate. The petitioner was compulsorily retired by means of the order dated 27-09-2019 on the recommendations made by the Review Committee comprised of various higher officers but ultimate decision to retire the petitioner compulsorily was taken at the highest level in the Government of India, Ministry of Finance, Department of Revenue. The Representation Committee considered the representation made by the petitioner against the order of compulsorily retiring him in its meeting held on 06-12-1990 taking into account the minutes of the Review Committee, the entire service record of the petitioner and other documents/records considered by the Review Committee and arrived at a conclusion that no interference was required to be made in the order dated 27-09-2019 passed by the Central Government. The Representation Committee also found that the major facts mentioned by the petitioner in his representation have been considered by the Review Committee and that the Review Committee took into consideration the entire service records and also expressed detailed reasons and grounds on which the decision to compulsorily retire the petitioner was recommended. The Representation Committee also found that decision to compulsorily retire the petitioner was taken by giving reasons and the same do not suggest any prejudice or irregularities. The Representation Committee, thus, on overall consideration of the matter formed the view that the order passed under F.R. 56(j) was fully justified.

37. The submissions made on behalf of the petitioner that for the reasons which have already been discussed in this judgment, the order of compulsorily retiring the petitioner was mala fide and was passed not for the purpose for which such power is vested in the Central Government, does not appeal to this court.

38. Submission of the learned counsel representing the respondents is that even if it is assumed that some or the other officer in the department bore some grudge against the petitioner, it cannot be said that entire exercise conducted by the Review Committee which comprised of higher officers of the department suffers from such malice for the reasons that there is no concept of them being " Institutional Malice", in our opinion, carries force.

39. We also notice that even the Representation Committee did not find any flaw in the decision to compulsorily retire the petitioner on examination of the entire record. The Representation Committee comprised of higher level officers and out of three members of the committee, two officers belonged to the different departments.

40. The submission that the order compulsorily retiring the petitioner is punitive is also not acceptable only because a charge-sheet was issued to the petitioner on 17-06-2019 and without concluding the departmental proceedings, the petitioner has been retired compulsorily on 27-09-2019. Only for this reason, it cannot be said that the order of compulsorily retirement of the petitioner is punitive as the object of compulsory retirement is always to achieve public interest and as to whether compulsory retirement on the basis of material available is justified or not, is primarily for the Central Government to consider. It is only in absence of any material or if some extraneous material appears to have been taken into consideration while passing the order of compulsory retirement, interference by this court is legally permissible.

41. From the records available before us, we are unable to conclude that there was no material on the basis of which the decision of compulsorily retiring the petitioner has been taken.

42. As held in by Hon'ble Supreme Court in the case of Col. J.N.Sinha and Ors (supra) the right vested in the government to compulsorily retire a government servant in public interest has to be exercised only subject to the conditions mentioned in FR 56(j). In our considered opinion, there is nothing on record which can suggest that the said power has been exercised in violation of the provisions of FR 56(j).

43. FR 56(j) imposes a condition that the power to compulsorily retire a government servant has to be exercised only once the concerned authority is of the opinion that it is in public interest to do so, and in case the authority concerned forms such an opinion, the bona fide and correctness of that opinion will be difficult to be challenged before the courts.

44. In the case of Col. J. N. Sinha and others (supra), it has been held by the Hon'ble Supreme Court that FR 56(j) is a facet of the pleasure doctrine embodied in Article 310 of the Constitution of India. The pleasure, thus, of the government is to be inferred from the opinion formed by the competent authority on the point as to whether prematurely retiring an employee or to retain him is in public interest. Such an opinion, in our considered view, cannot be substituted by the opinion of the court. If on the basis of material available, the competent authority finds that it will be in public interest to compulsorily retire a government employee, such decision need not be interfered with unless it is based on no material or is infested with mala fide.

45. In the facts of the case as can be culled out, we are of the opinion that it is not a case where the opinion of the competent authority to retire the petitioner compulsorily is based on no material and further that since the matter has been considered at the various stages, hence, it would be impermissible for the petitioner to plead at every stage that decision was infested with mala fide. The first stage where issue was considered was at the stage that the Review Committee which made the recommendation to compulsorily retire the petitioner. Nothing has been said in the writ petition or in the original application filed before the Central Administrative Tribunal against any of the members of the Review Committee so as to infer that these members had acted with malice.

46. The second stage of consideration was at the level of Central Government, when the recommendation of the Review Committee was accepted and the decision to compulsorily retire the petitioner was taken. The original application and even the writ petition lacks any allegation or any material against the officers at the highest level of the Government of India, Ministry of Finance, Department of Revenue.

47. The third stage when the matter was again considered was the Representation Committee, comprising of High Level Officers, which considered the representation preferred by the petitioner against the order of compulsory retirement and rejected the same. This Representation Committee also consisted of three officers and there is nothing on record; neither has it been pleaded that the members of the Representation Committee, which comprised of High Level Officers, acted with mala fide.

48. In view of the aforesaid discussion, the argument made by the learned counsel for the petitioner that the impugned action which resulted in compulsory retirement of the petitioner is infested with malice does not hold any force, hence, it is rejected.

49. So far as the submission made by the learned counsel for the petitioner based on sub clause (d) of clause 5 of the Office Memorandum dated 21.03.2014 is concerned, it is to be noticed that as per the said provision a government servant whose integrity is doubtful is to be retired compulsorily and the Government servant who is found ineffective is also to be retired. However, what is prohibited in sub clause (d) of clause 5 of the said Office Memorandum is that an officer who is to attain the age of superannuation within a year from the date of consideration of his case should "ordinarily" not to retired on the ground of ineffectiveness, though he can be retired in case of doubtful integrity. The said provision also provides that an employee who is retiring within one year from the date of consideration can be retired also in case of sudden and steep fall in his competence of efficiency. The provisions contained in sub clause (d) of clause 5 uses the word "ordinarily". It is thus, clear that sub clause (d) of clause 5 of the said Office Memorandum does not completely bar compulsory retirement of an employee on the ground of ineffectiveness if he is to attain the age of superannuation within one year from the date of consideration. The Office Memorandum dated 21.03.2014 is only an executive circular which has been issued for guiding the officers in the department concerned while they exercise the powers to compulsorily retire an employee. Such circular is only in aid of FR56 (j) which has statutory force. Thus the provisions contained in Office Memorandum dated 21.03.2014 are to be read in this context. FR 56(j) is quoted here for ready reference:

"FR 56(j) :- 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, quasipermanent 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 55 years. "

50. On a bare perusal of the aforequoted provision contained in FR 56(j) what is noticeable is that primary consideration for the authority concerned to exercise such power is to ensure public interest. The relevant phrase occurring in the aforesaid provision is "the appropriate authority shall, if he is of the opinion that it is in the public interest to do so, have absolute right to retire any government servant". As observed above, operation of FR 56(j) is subject to the provision contained therein, according to which the Government employee can be compulsorily retired if he had attained the age of 50 years in case he holds class 1 or class 2 posts.

51. Thus, on attainment of age of 50 years, a class 1 or class 2 officer can be considered as to whether he needs to be retained in service or he should be prematurely retired in public interest. The right vested in the appropriate authority for such consideration is an absolute right and accordingly while judicially scrutinising an order of compulsory retirement, the courts should exercise it jurisdiction very sparingly. The situations in which judicial scrutiny can be undertaken by the Courts, have already been stated above. Thus, the Office Memorandum dated 21.03.2014, in our opinion, has to be read as subservient to FR56 (j) where importance is to be given to public interest and due weightage is to be given to "absolute right" vested in the appropriate authority. The Office Memorandum dated 21.03.2014 thus cannot be read as statute and in case consideration is made in respect of an employee who is to attain the age of superannuation within one year,he can still be compulsorily retired in public interest if the material available so warrants.

52. Having observed as above, we also notice that in the counter affidavit the respondents have taken a plea that the instant writ petition is not maintainable before this Court at Lucknow as the order under challenge herein has been passed by Principal Bench of Central Administrative Tribunal at New Delhi and in view of the law laid down by Hon'ble supreme Court in the case of L. Chandra Kumar vs. Union of India, reported in (1997) 3SCC 261, the writ petition challenging the judgments and orders of CAT can be filed before the High Court within whose territorial jurisdiction the Member of Tribunal falls. However, while arguing the matter this plea has not been raised before this Court by the respondents.

For the discussion made and reasons given above, we do not find any ground in this writ petition which may warrant any interference in the order passed by the Central Administrative Tribunal or in the order compulsorily retiring the petitioner or in the order passed by the Representation Committee. The writ petition is thus, dismissed.

. There will be no order as to costs.

Order Date :- 31.05.2022 akhilesh/

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Allahabad High Court

Captain Pramod Kumar Bajaj vs U.O.I.Thru Revenue Secretary North ... on 31 May, 2022

Bench: Devendra Kumar Upadhyaya, Saroj Yadav