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13. The DDA denies that the impugned order was punitive in nature; it avers that it was on account of relevant considerations, after going through the entire records pertaining to the petitioner's service. It also avers that the absence of any adverse entry, or non-communication of any adverse entry in the ACR, did not mean that the DDA could not exercise the power under FR 56(j)(i). The DDA denies the averment of the petitioner that it could have resorted to the power under FR 56 only when the official concerned attained 50 years, and not later. The petitioner had completed 50 years on 15-1-1984, and therefore, fulfillled the criteria for review, for purposes of compulsory retirement, in 1985, when the impugned order was passed.

18. Learned counsel relied upon the decision in S.C. Dikshit v. Union of India 1987(12) DRJ 157 to say that in that decision, the court had held that an order of compulsory retirement, imposed upon a person who was absorbed on 1-1-1981, by the DDA, was illegal. A valid compulsory retirement order could be issued under FR 56(j) only if the officer entered the service of DDA before attaining the age of 35 years. Learned counsel stated that on a parity of reasoning, the petitioner stood absorbed with DDA only on 26-3-1984, when he was deemed retired from CPWD. Therefore, he could not have been compulsorily retired in terms of FR 56(j)(i); the DDA could have taken sought recourse to FR 56(j)(ii) after the petitioner attained 55 years, provided other conditions were fulfillled.

21. Ms. Anasuya Salwan, appearing for DDA, disputed that the power under FR 56(j)(i) could not be invoked. She stated that the judgment in SC Dikshit could not be construed as good law, since in later judgments, the Supreme Court has clarified that as long as the content of FR 56(j) (i) is fulfillled, the question of length of service of the employee would not arise. She relied upon the decision reported as UP State Mineral Development Corporation v. KPC Sinha for the purpose.

22. It was contended that the review committee, comprising of high officials, had considered all the records, and had concluded, bona fide, that it would not be in public interest to retain the petitioner in services of DDA. She also submitted that right from the decision in Union of India v. Col. J.N. Sinha , it had been held that an order of compulsory retirement, issued in bona fide exercise of power, cannot be construed as punitive or casting a stigma upon the employee. Reliance was also placed upon K. Kandaswamy v. Union of India . As regards absence of any adverse entry in the confidential reports is concerned, counsel urged that such a consideration is not conclusive, as to the utility or otherwise of the public servant's continuation in the service; a single action or omission of the kind involved in this case was sufficient for a reasonable decision as to the officer having outlived his utility in the organization.

(i) If he is in Class I or Class II Service or post and had entered the DDA service before attaining the age of thirty five years, after he has attained the age of fifty years.

The assumption is not based on any amendment of the Fundamental Rule; it continued to read ``the Government service and not the DDA service as quoted in the judgment. The entire reasoning in the judgment that previous government service was not to be reckoned, is on the assumption that the rule specifically read as if the officer entered ``the DDA service before attaining the age of thirty five years. This interpretation is not borne out by the rule; indeed, the petitioner himself asserts that the rule reads as if the official held a Class I/ Class II post and ``had entered the Government service before attaining the age of thirty five years Such being the correct position, it would be immediately apparent that the petitioner's previous service with the CPWD too had to be taken into consideration, since it was ``Government service'' If the other construction placed, viz that the absorption meant fresh employment, were to be accepted, as it was in Dikshit's case, the very rule would be rendered redundant, since DDA would be powerless to invoke FR 56(j)(i) in the case of Class I and Class II employees absorbed into its services, after they cross 35 years, whereas, in the case of those who entered before such age, in the same category of posts, the power would be available. There is no discernible rationale for such a classification; indeed the amplitude of the power, and the logic of its existence would be undermined. Secondly, the decision of the Supreme Court in K.P.C. Sinha (supra) contains observations which suggest that absence of a minimum qualifying service, where the rule provided a minimum age for issuing an order of compulsory retirement, do not necessarily invalidate the order. I am of the opinion, therefore, that the decision in SC Dikshit is not good law, both on account of its not taking into account the text of FR 56-j(i) as also in view of the decision in K.P.C. Sinha's case.