Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
CHANDRA MOHAN NIGAM & OTHERS
DATE OF JUDGMENT19/09/1977
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
SINGH, JASWANT
KAILASAM, P.S.
CITATION:
1977 AIR 2411 1978 SCR (1) 521
1977 SCC (4) 345
CITATOR INFO :
D 1980 SC 563 (13,19,24,31)
RF 1980 SC2084 (5)
R 1981 SC 594 (5)
ACT:
Service Law-All India Services (Death-cum-Retirement
Benefits) Rules, ’1958, R. 16(3)-Instructions by Central
Government regarding procedure, whether binding on
Government-Review of officer’s service records at completion
of 50 years age-Favourable report of Review Committee
accepted by State and Central Governments-Service records
reviewed by second Review ,Committee an same materials,
prior to completion of 54 years age-Compulsory retirement on
recommendation of second Review Committee, whether valid-
Retirement u/r 16(3) vis a vis the constitutional right
under Preventive Detention Act.
HEADNOTE:
Shri Nigam was a member of the Indian Administrative
Service. During his service career, he had some adverse
entries in his character roll. He was suspended in 1964,
pending enquiry on account of certain strictures passed against him
by the Election Tribunal, but was reinstated
when the High Court expunged the strictures on appeal. On
December 29, 1967, Shri Nigam attained the age of 50 years,
and, following the Central Government’s instructions, in
October 1969, a Review Committee examined his service
records under R. 16(3) of the All India Services (DCRB)
Rules 1958, as amended in 1969. The Committee’s
recommendation for Shri Nigam’s continuance in service, was
accepted by the State Government, and the Central Government
did not communicate any disagreement. In May 1970, the
State Government set up a second Review Committee u/r. 16(3)
which examined Shri Nigarm’s service records on the same
materials, and recommended compulsory retirement. The
recommendation was accepted, and an order dated August 22,
1970, was passed, compulsorily retiring him. Shri Nigam’s
writ petition was allowed by a Single Judge of the High
Court, and a State appeal was rejected by the Division
Bench, which found. the case to be analogous with the
infringement of a constitutional right under the Preventive
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Detention Act.
Dismissing the appeal by certificate, the Court,
HELD : (1) Since Rule 16(3) itself does not contain any
guidelines, directions or criteria, the instructions issued
by the Government furnish an essential and salutary
procedure for the purpose of securing uniformity in
application of the rule. They are embedded in the
conditions of service, and are binding ,on the Government,
and cannot be violated to the prejudice of the Government
servant. [531 A-B]
Santram Sharma v. State of Rajasthan & Anr. [1968] (1) SCR
111 and Union of India v. K. P. Joseph & Ors. [1973] (2)
SCR 752, applied.
(2) Once a Review Committee has considered the case of an
employee, and the Central Government does not decide, on the
report of the committee endorsed by the State Government to
take any prejudicial action against an officer, there is no
warrant for a second Review Committee under the scheme of
rule 16(3) read with the instructions, to reassess his case
on the same materials, unless exceptional circumstances
emerge in the mean time or when the next stage for review
arrives. [531 C-D]
(3) The principle governing the order of preventive
detention with regard to effective representation against
such order, is not applicable in the case of an order for
compulsory retirement which casts no stigma on a Government
servant. The test which has been laid down in the case of
preventive detention is in context of right to individual
liberty of a person which is a fundamental right enshrined
in the Constitution while the order of compulsory retirement
522
is passed in respect of a Government servant who has ceasedto
have a right, as such, to continue in Government service
under the rulesgoverning his employment. [528 G-H]
State of Orissa v. Bidyabhushan Mahopatra [1963] Supp.(1)
SCR 648, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.161 of
1974 and 1782 of 1973.
From the Judgment and Decree dated 13-4-1973 of the
Allahabad High Court in Special Appeal No. 698 of 1971.
S.N. Kacker, Sol. Gen., O. P. Rana for the Appellant in
CA No161/74 and R-2 in CA No. 1782/73.
S.N. Kacker, Sol. Genl. and Girish Chandra for the
Appellant in CA No. 1782/73.
Yogeshwar Prasad, (Mrs.) S. K. Bagga, Miss Meera Bali and
Miss, Rani Arora for Respondent No. 1 in both the appeals.
The Judgment of the Court was delivered by.
GoswAmI, J. These appeals by certificate are from the
judgment of the Division Bench of the Allahabad High Court
centering round an order of compulsory retirement of a
senior officer in the Indian Administrative Service.
The first respondent, Chandra Mohan Nigam, (briefly the
respondent) was recruited in the Indian Administrative
Service in Uttar Pradesh Cadre as a, War-service candidate
in 1946 and he joined service on March 23, 1947. For the
purpose of seniority, etc. he was allotted to the year 1941.
In 1949 he was promoted to the senior scale. He was
appointed Commissioner of Faizabad and Gorakhpur Divisions
in 1962. On June 4, 1967, he was, posted as Secretary,
Local Self Department in the State Government. He was
appointed Judicial Member of the Board of Revenue in 1969.
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He attained the age of 50 years on December 29, 1967. By an
order dated August 22, 1970, the President of India, in
consultation with the Government of Uttar Pradesh, in
pursuance of the power conferred by sub-rule (3) of rule 16
of the All India Services (Death-cum-Retirement Benefits)
Rules 1958, passed the impugned order of compulsory
retirement of the respondent in the public interest on the
expiry of three months from the date of service of the
order.
The respondent challenged the said order by a writ
application before the Allahabad High Court and the learned
single Judge allowed the same on the grounds of
"contravention of the justifiable and binding rules and
because the order was based on consideration of irrelevant
matters and was also vitiated by bias".
Both the Union of India. and the State of U.P. appealed to
the Division Bench of the High Court against the judgment of
the learned single Judge. The High Court by an order dated
April 13, 1973, dismissed both the appeals by a common
judgment.. The Division Bench did not agree with all the
reasons given by the learned single Judge and
523
quashed the impugned order holding that "the decision of the
Central Government to retire Shri Nigam being based on
collateral facts was invalid".
The impugned order of compulsory retirement was based on
four grounds. According to the Division Bench the ground
relating to an order ofsuspension, on account of certain
strictures of the Election Tribunalwas the "gravest’ of
all the four. Since according to the DivisionBench this
ground was absolutely non-existent on account of the
strictures having been later on set aside, it was of opinion
that the non-existent ground prevailed with the Central
Government to take the decision for compulsory retirement of
the respondent. The Division Bench observed "we are unable
to hold that if the Government had excluded the case of
suspension from consideration, it would nonetheless have
reached the same decision, namely, to take action for’ Shri
Nigam’s premature retirement’. It is complained before us
by the appellants that the Division Bench erroneously
invoked the principle of law laid down by this Court in the
matter of preventive detention which is that if one of
several grounds is irrelevant or non-existent and the said
ground is not inconsequential or non-essential, an order of
detention is invalid. Applying the above principle, the
Division Bench quashed the impugned order. The High Court
granted certificate to the appellants for leave to appeal to
this Court and that is how these appeals have come before
us.
Before we proceed further a brief reference to the facts and
circumstances may be appropriate.
The respondent during his service career had the following
adverse entries in his character roll :
(1) A warning was administered to him on
December 6, 1953, for taking undue interest in
the ejectment of tenants from a house owned by
him at Lucknow.
(2) Another warning was issued to him on Au-
List 31, 1962, for having acquired a car from
the Varanasi Corporation while working as the
Administrator of the Varanasi Municipal
Corporation.
(3) He was also once warned for not
observing, proper rules and procedure for
utilizing the fund earmarked for lower income,
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group housing scheme towards the construction
of a market (1956-1957).
(4) He, was also placed under suspension in
1964 in connection with some strictures passed
on him by the Election Tribunal in a case
relating to the Gorakhpur Parliamentary
Constituency elections.
With regard to the fourth entry, it appears that although
Shri Nigam had been suspended pending enquiry on account of
certain strictures made against him by the Election
Tribunal, these strictures were later on expunged by the
High Court on appeal. As a result the order of
524
suspension was set aside and Shri Nigam was reinstated in
service in 1967. it appears, however, that even on December
20, 1969, the Secretary, Ministry of Home Affairs of the
Central Government, while ,glancing through the character
roll of Shri Nigam found the aforesaid entry containing the
strictures.
The All India Services Act, 1951 (No. LXI of 1951)
regulates the recruitment and the conditions of
service of persons appointed to the All India Services.
Under section 3 of that Act the Central Government, after
consultation with the Governments of the States concerned
makes rules for the regulation of recruitment, and the
conditions of service of persons appointed to an All India
Service. In exercise of powers under sub-section (1) of
section 3 of the said Act, the Central Government made the
AU India Services (Death-cum-Retirement Benefits) Rules,
1958. Rule 16 of these Rules provides for superannuation,
gratuity or, pension. The normal age of retirement of the
officers in the All India Service (hereinafter to Se
described as the Service) is 58 years as per rule 16(1).
Sub-rule (2) of rule 16 provides that a member of the
Service who has completed 30 years of qualifying service or
has attained the age of 55 years may, after giving at least
three months’ previous notice in writing to the State
Government, retire from the Service on any date to be
specified in the notice. We may read sub-rule (3) of rule
16 which is material for our purpose
"16(3) : The Central Government, in
consultation with the State Government, may
require a member of the Service who has
completed 30 years of qualifying service or
who has attained the age of 55 years, to
retire in the public interest provided that at
least three months previous notice in writing
will be given to the member concerned".
Later by a notification dated July 16, 1969, the figures and
words ". 5 5 years" in sub-rules (2) and (3) of rule 16 were
substituted by the figures, and words "50 years".
Since sub-rule (3) of rule. 16 does not contain any
guidelines with regard to premature retirement the
Government of India, in the Ministry of Home Affairs issued
certain instructions which are printed at page 596 of the
All India Services Manual (corrected upto 1.5.1967) which is
published under the authority of the Government. Paragraph
2 of those instructions reads as under
"With a view to ensure all-,India uniformity
of operation of this sub-rule [sub-rule (3) of
rule 161 and also to ensure equitable
treatment in all cases of premature retirement
the Government of India have laid down the
following criteria and procedure to be
followed by the State Governments etc. while
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referring cases to the Central Government
under this [sub-rule (3) of rule 16]
(1)Six months before an officer attains the
age of 55, his record should be carefully
examined by the State Government, or if the
officer is serving under the
525
Central Government by the Central Government,
and a provisional judgment formed whether he
should be retired on attaining the age of 55
years.
(2) Where the State Government come to the
conclusion a,,; a result of this examination
that an officer should be retired prematurely under Rule 16
(2) referred to above, they may
make a proposal according to the Central
Government with a full indication of the
considerations and reasons for their proposal.
Where an officer is serving under the Central
Government, the Central Government would send
a similar statement to the State Government
while inviting their views on the question of
retiring the officer prematurely. It is to be
hoped that this" process of consultation
between the Central and the State Governments
would be completed in each case in about three
months’ time so that in the event of
retirement being finally decided upon, a
notice could be given to the officer concerned
at least three months before the date on which
be is to attain the age of 55 years and his
retirement thus given effect ,is soon as he
does so.
(3) x x x
x
(4) In a case in which the State and the
Central Governments have reasonable cause to
believe that an officer is lacking in
integrity, it would be appropriate to consider
him for premature retirement, irrespective of
an assessment of his ability of efficiency in
work.
(5) x x x x
(6) x x x x
(7). Once it is decided to retain an officer
beyond the age of 55 years, he should be
allowed to continue up to the age 58 without
any fresh review unless this be justified by
any exceptional reasons, such as his sub-
sequent work or conduct or the state of his
physical health, which may make earlier
retirement clearly desirable. The Government
of India feel that in order that an officer
who is cleared for continuance at the stage of
attaining the age of 55 years can settle down
to another three years of work with a sense of
security and those working under him accept
his control and discipline without any
reservation an annual review between ’the
years of 55 and 58 would not be desirable. In
arriving at this view , they have among other
factors taken into consideration the fact that
at these stages, members of all-India Services
generally occupy very senior appointments on
which particularly such a sense of security
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about their tenure is desirable in the public
interest. Further,
526
having arrived at an assessment in favour of
further continuance in service at the age of
54 years or so, there would ordinarily be no
occasion for changing the assessment during
the next three years,, so that an annual
review would serve little practical purpose. Finally,
in any case, sub-rule (3) of rule 16 of the AIS
(DCRB) Rules would enable appropriate
consideration at any time in very exceptional
circumstances".
On September 5 1967, the Ministry of Home Affairs issued
further instructions to the Chief Secretaries of all the
State Governments (except Nagaland) with regard to the
criteria and procedure to be followed regarding premature’
retirement of the All India Service officers. We may read
paragraph 2 of those instructions :
" In clarification of and supplemental to the
previous instructions issued in the letter
quoted above, the Government of India would
suggest the observance of the following
criteria and procedure for the aforesaid
purpose :--
(1) A review should be conducted twice a
year in the month of January and
July to determine the suitability for
continuance of all officers who will attain
the age of 55 years in the half year beginning
with the following July and January
respectively. The review may be
conducted by committees constituted as follows
x x x
x
(b) In the States, for I.A.S. Officers the
Review Committee may consist of the Chief
Secretary, Member/ Senior Member/Chairman,
Board of Revenue. and one other senior
officer."
x x x
x
We may also refer to a notification dated August 14, 1969,
from the Ministry of Home Affairs, Government of India, to
the Chief Secretaries of all the State Governments with
regard to the amendment to rule 16 for review of records of
officers at the age of 50 Paras 2 and 3 of this notification
may be quoted
"2. 1 am to request that the State Governments
may kindly take steps to review the records of
all those All India Service officers, who have
already completed or who are about to complete
the age of 50 in the next 6 months or so and
are serving in connection with the affairs of
the State....
3. The, criteria and procedure for review
of records and also service of notice on
those, who are proposed to
527
be retired will be the same as outlined in
this Ministry’s letter No. 29/67/66-AIS(11),
dated the 5th September, 1967. This review at
the age of 50 will be in addition to the one
contemplated later at the age of 55".
It is in pursuance of sub-rule (3) of rule 16 and in
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consonance with the instructions set out above that the
State Government of U.P. in October 1969 constituted a
Review Committee consisting of Shri H. C. Gupta, Chairman,
Board of Revenue, Shri B. B. Lal, I. C. S., Chief Secretary
and the Member, Taxation Board of Revnue, to review the
records of the members of the Service who were to attain or
had attained the age of 50 years. The list of officers
considered by this Committee included the respondent, Shri
Nigam. The Committee did not recommend any of the officers
including Shri Nigam for premature retirement and, on the
other hand, recommended that they should be continued in
service. The State Government accepted the report of the
Review Committee and communicated its decision to the
Central Government. On December 20, 1969, the Secretary,
Ministry of Home Affairs of the Central Government,
addressed a letter to the State Government as follows :-
"I have glanced through the character rolls of
the I.A.S. Officers of Uttar Pradesh Cadre,
who have already reached the age of 50. 1 find
that there are certain adverse remarks in the
character roll of Shri C. M. Nigam (IAS-1941).
A warning was administered to him on December
6, 1958 for taking undue interest in the
ejectment of tenants from a house owned by him
at Lucknow. Another warning was issued to him
on 31st August 1962 for having acquired a car
from the Varanasi Corporation while working as
Administrator of the Varanasi Municipal
Corporation. He was also once warned for not
observing proper rules and procedure for utilising
the fund earmarked for low income group
housing scheme towards the construction of
a market. Later he was also placed under
suspension in connection with some strictures
passed on him by the Election Tribunal in a
case relating to the Gorakhpur Parliamentary
Constituency elections.
(2) In view of these, it appears to us that
this is a fit case in which proposals for his
premature retirement under rule 16(3) of the
All India Services (DCRB) Rules, 1958 should
be considered. The State Government however
have not recommended his compulsory
retirement. We do not know if there were any
particular reasons for taking a different view
or whether it was a case of oversight. We
would like to have the considered views of the
State Government before Central Government
come to a decision."
On January 29, 1970. the Chief Secretary to the State
Government replied that the review Committee bad considered
the character roll
528
and the merits of the case of Shri Nigam and found that he
was suitable for continuing in service, that the decision of
the Committee was accepted by the State Government, the
State Government’s decision in the matter was taken after
thorough consideration and that it did not consider it
necessary to go into this question again. No adverse
decision contrary to the recommendation of the, State
Government was communicated by the Central Government to the
State Government in pursuance of the recommendation of the
first Review Committee in October 1969.
Next, we, find that the State Government constituted a
second Review Committee in May 1970 consisting of Shri
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Musaddi Lal, Chief’ Secretary, Shri J. D. ’Shukla, Member
Board of Revenue and Shri J. B. Tandon, the senior-most
officer of the Indian Administrative Service. Before this
Committee ’the case of all the officers who had, attained
the age of 50 years including those whose cases had been re-
viewed earlier, in October 1969, were also placed for
consideration. Thus Shri Nigam’s case came to be considered
again by the second Review Committee. This time the
Committee recommended that two officers, one of whom was
Shri Nigam, should be prematurely retired. The State
Government having accepted this recommendation; forwarded
the same to the Central Government. The Central Government
asked the State Government to send the proceedings of the
Review Committee. On receipt of that report the Central
Government agreed with the views of the State Government and
passed the impugned order of compulsory retirement of the
respondent.
It is submitted by the appellants that no decision was made
by the Government of India after receipt of the
recommendation of the State Government in October 1969 or
even after reiteration of the State Government’s views in
January 1970. Even the counsel for the State conceded in
the High Court that only if the Central Government disagreed
with the State Government a communication was made. The
absence of communication until the second Review Committee
goes to show that there was no adverse decision against the
respondent.
As we have indicated earlier in the judgment the learned
Solicitor General, on behalf of the appellants, emphasised
before us his objection to the question of principle which
was relied upon by the Division Bench for quashing the
impugned order, that is to say, the principle applicable to
the case of preventive detention.
We have no hesitation in holding that the principle
governing the order of preventive detention evolved by this
Court having regard’ to the constitutional right of a person
appertaining to effective representation aaginst such order
is not applicable in the case of an order for compulsory
retirement which casts no stigma on a Government servant and
cannot be equated with an order affecting his right by way
of disciplinary proceedings. An order of compulsory retire-
ment, simpliciter, under rule 16(3) does not affect any
right of the Government servant.
529
Under rule 16(2), a Government servant has a right to retire
prematurely by giving three months’ previous notice to the
Government. Similarly under rule 16 (3), after a Government
servant serves a period of 30 years or attains the age of 50
years, he cannot insist on a right to be retained in the
service. The Government may also exercise a corresponding
right under rule 16(3) to prematurely retire him at the age
of 50 or 55 after giving three months’ notice. Ins
termination of service by way of premature retirement cannot
be equated with a penal order of removal or dismissal. Even
so, an order of compulsory retirement may be challenged in a
court if it is arbitrary or is actuated by. mala fides.
Even in the case of an order of dismissal. by way of
punishment if there, are several grounds on which the order
is founded and one or two of those fail and the order can
still rest on the surviving ground or grounds disclosing a
prima facie case of guilt or misconduct, the same cannot be
held to be invalid by applying the subjective test of
preventive detention (see State of Orissa v. Bidyabhushan
Mahopatra). Bidyabhushan (supra) was a case of dismissal of
a Government servant for misconduct on several grounds, two
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of which failed. This Court, differing from the High Court
on the point held as follows:--
"If the order of dismissal was based on the
findings on charges 1 (a) and- 1 (e) alone the
Court would have jurisdiction to declare the
order of dismissal illegal but when the
findings of the Tribunal relating to the two
out of five heads of the first charge and the
second charge was found not liable to be
interfered with by the High Court and those
findings established that the respondent was
prima facie guilty of grave delinquency, in
our view the High Court had no power to direct
the Governor of Orissa to reconsider the order
of dismissal......
x x x
x x
Therefore if the order may be supported on any
finding as to substantial misdemeanour for
which the punishment can lawfully be imposed,
it is not for the Court to consider whether
that ground alone would have weighed with the
authority in dismissing the public servant".
If the above legal, position is true with regard to a case
of dismissal of a Government servant who but for the proof
of misconduct would have a right to continue in the service,
it will, a fortiori, hold good in the case of termination of
service by way of compulsory retirement under the rules
where, after an employee’ has done a specified years of
service or reached a specified age of reasonable duration,
his right to continue, as such, becomes again subject to his
own volition under rule 16(2) or to exercise of an equal
right by the Government to prematurely retire him under rule
16(3).
(1) [1963] Supp. 1 S.C.R. 648.
10-930SCI/77
530
As stated earlier, even in the case of compulsory retirement
under rule 16(3), an order may be challenged in a court if
it is arbitrary or mala fide. If, however, the Government
reaches a decision to prematurely retire a Government
servant, bona fide, the order, per se, cannot be
characterised as by way of punishment since it does not cast
any stigma on the employee nor does the employee forfeit any
benefit which he has already earned by his service, nor does
it result in any civil consequences.
The Division Bench took the view that since the "gravest" of
the reasons which was the order of suspension, became non-
existent and was still operating in the mind of the Central
Government, the impugned order could not be supported on the
ground that the same was based on collateral consideration,
one serious reason being absolutely non-existent and thus
illusory.
The High Court is not correct that the order of suspension
which was pending enquiry was a punishment under the rules.
It was not. Therefore, the degree of gravity attached to
the order by the High Court was neither appropriate nor
correct. We are also unable to agree with the High Court
that except one out of the several reasons, on which the
impugned order was based, the entire order is liable to be
struck down as invalid.
The test which has been laid down in the case of preventive
detention is in the context of right to individual liberty
of a person which is a fundamental right enshrined in the
Constitution. The Order of compulsory retirement is
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passed in respect of a Government servant who has ceased
to have a right, as such, to continue in Government service
under the rules governing his employment. The analogy with
cases under the Preventive Detention Act is, therefore,
absolutely out of place. The Division Bench is not
right in quashing the impugned order on that solitary
ground.
This would, however, not conclude the controversy before us.
Mr. Yogeshwar Prasad appearing on behalf of the respondent,
dos not challenge before us that the impugned order is
vitiated by mala fides. Even the Division Bench,
differing from the learned single Judge, found against
the plea of mala fides. We are, therefore, relieved of
dealing with this plea.
This learned single Judge held the instructions of the
Ministry of Home Affairs as statutory and as such
binding, on a concession made in the counter-affidavit
submitted before him by the Under Secretary of the
Personnel Department (Cabinet Secretariat). According to
counter-affidavit these instructions were made by the
Government by rule 2 of the All India Services (Conditions
of Service-Residuary Matters) Rules, 1960. It is not
necessary to go into this aspect in detail in this case
as to whether the instructions can be elevated If to the
status of statutory rules or even constitutional directions
as found by the learned single Judge. it is sufficient for
our purpose that these instructions do not violate any
provision of the Act or of the rules. Rule 16(3), being a
rigorous rule vis-a-vis a Government
531
servant not himself willing to retire under rule 16(2), has
to be invoked in a fair and reasonable manner. Since rule
16(3) itself does not contain any guidelines, directions or
criteria, the instructions issued by the Government furnish
an essential and salutary procedure for the purpose of
securing uniformity in application of the rule. These
instructions really fill up the yawning gaps in the
provisions, and are embedded in the conditions of service.
These are binding on the Government and cannot be violated
to the prejudice of the Government servant (see also Sant
Ram Sharma v. State of Rajasthan & Anr(1) and Union of India
v. K. P. Joseph and Ors.(2).
Whether all the aforesaid instructions issued by the
Government are mandatory or not do not call for a decision
in these appeals. Some of them may not be mandatory. Not-
that every syllable in the instructions is material. Some
of them may be described as prefatory and clarificatory.
However, one condition is absolutely imperative in the
instructions, namely, that once a Review Committee has
considered the case of an employee and the Central
Government does not decide on the report of the Committee
endorsed by the State Government to take any prejudicial
action against an officer, after receipt of the report of
the committee endorsed by the State Government, there is no
warrant for a second Review Committee under the scheme of
rule 16(3) read with the instructions to reassess his case
on the same materials unless exceptional circumstances
emerge in the meantime or when the next stage arrives. We
should hasten to add that when integrity of an officer is in
question that will be an exceptional circumstance for which
orders may be passed in respect of such a person under rule
16(3), at any time, if other conditions of that rule are
fulfilled, apart from the choice of disciplinary action
which will also be open to Government. Although a faint
attempt was made before the learned single Judge that fresh
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facts were available for the purpose of the second Review
Committee, the High Court did not accept the position nor do
we find any reason to differ from that opinion. It is,
therefore, clear that the respondent’s order of termination
was made not as a result of the report of the first Review
Committee in accordance with the instructions but on the
recommendation of the second Review Committee which could
not have taken up his cage, as it was, on the self-same
materials prior to his reaching the age of 55 years.
We find from the instructions that reviews have to be
conducted twice in the career of a Government servant, once
six months prior to his attaining the age of 50 years and
again six months prior to his attaining the age of 55 years.
Since the amendment introducing the age of 50 years came in
August 1969, after the respondent had already attained 50
years, the first review in his case could be held only in
October 1969. The second Committee sat in May 1970 after
the first Committee had recommended the continuance of the
respondent in service in October 1969 which was agreed to by
the State Government and even reiterated by it on a query
from the Central Government in January 1970. If the Central
Government did not choose to decide against the respondent
then, the second Review Committee of May
(1) [1968] 1 S.C.R. III.
(2) [1973] 2 S.C.R.752.
532
1970 could not again consider the case of the respondent in
the usual course and under normal circumstances when he was
not even 53 years of age after having already got a
clearance from the first Review Committee which was endorsed
by the, State Government only four months earlier. It was
open to the Central Government to differ from the State
Government’s views. But it did not. We must make it clear
that the decision would have been entirely different if we
were satisfied that there were exceptional circumstances of
any kind to reopen the case of the respondent.
The correct position that emerges from rule 16(3) read with
the procedural instructions is that the Central Government,
after consultation with the State Government, may
prematurely retire a civil servant with three months’
previous notice prior to his attaining 50 years or 55 years,
as the case may be. The only exception is of those cases
which had to be examined for the first time after amendment
of the rule substituting 50 years for 55 where even
officers, who had crossed the age of 50 years, even before
reasoning 55, could be for the first time reviewed. Once a
review has taken place and no decision to retire on that
review has been ordered by the Central Government, the offi-
cer gets a lease in the case of 50 years upto the next
barrier at 55 and, if he is again cleared at that point, he
is free and untrammelled upto 58 which is his usual span of
the service career. This is the normal rule subject always
to exceptional circumstances such as disclosure of fresh
objectionable grounds with regard to integrity or some other
reasonably weighty reason.
Under Article 310, Government servants, high or low, hold
service during the pleasure of the President or the Governor
as the case may be., subject to two well-known limitations,
namely, that they shall not be dismissed or removed by an
authority subordinate to that by which they were appointed
and secondly, that they shall not be dismissed or removed or
reduced in rank except after an enquiry into the charges
clearly levelled against them and affording a reasonable
opportunity of being, heard in respect of the charges. We
need not refer to the proviso to Article 311(2) which deals
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with certain exceptional cases.
Thus the pleasure doctrine under Article 310 is conditioned
by constitutional restrictions under Article 31 1. Under
Article 309 the appropriate legislature may regulate the
recruitment and conditions of service and until so done, the
President or his delegate and the Governor or his delegate
may make rules regulating the recruitment and conditions of
service. The Act passed by the appropriate legislature and
the rules made under Article 309 will. however, be subject
to the provisions of the Constitution which include Article
311 and certainly the Fundamental rights.
The pleasure doctrine under Article 310 is in a way
unoffendingly resuscitated with appropriate vigour towards
the tail end of the career of a Government servant under
rule 16(3) in the puublic interest Compulsory retirement
under the service rules is not by way of punishment, as
understood in service jurisprudence, however, unsavoury it
533
may be otherwise. During the entire tenure of Government
servants from the date of temporary or probationary
appointment till termination or retirement, as the case may
be, there is an undoubted security for them against
dismissal, removal or reduction in rank except in the,
manner laid down under Article 311(2), read with relevant
laws or rules made under Article 309.
In order to pass the test of constitutionality, rule 16(3)
must needs be safeguarded by reasonable procedural
guidelines in order that here may be no scope for
arbitrariness or discrimination. That is how rule 16(3),
being silent, instructions speak and do vitative service in
a vacuous field. The material procedure under the
instructions, as if interwoven in rule 16(3)., can on no
account be held invalid or impermissible.
Compulsory retirement under rule 16(3) is a salutary
safeguard in the armoury of the Government for maintenance
of the services in trim and fitness. Rule 16(3) is a
constant reminder to the slacker, the sluggish and the
inefficient, not to speak of those who may be dishonest or
unscrupulous by reputation beyond redemption. At a
reasonable point of service a stage is reached when the
Government reserves its undoubted right to have a second
look at the officers whether their retention in employment
would be useful in the public interest. That is the role of
rule 16(3). Rule 16(3), with the instructions, is a warning
poster for every Government servant to conduct himself
properly, diligently and efficiently throughout his service
career. The Government has advanced the time of the first
review by amendment of rule 16(3). As stated earlier, there
are now two stages in a service career, namely, at the age
of 50 and 55, for the Government to take a decision to
refurbish, invigorate and stimulate the Service and with
that sole object a decision has’ to be fairly taken well in
time under rule 16(3) in accordance with the published
procedure.
While purity in administration is certainly to be desired,
the security and morale of the Service have also to be
maintained. It is because of these high considerations that
the Government has issued appropriate and reasonable
instructions to guide the authorities in. passing orders for
premature retirement. The instructions clearly show that
"having arrived at an assessment in favour of further con-
tinuance in service at the age of 541 years or so, there
would ordinarily be no occasion for changing the assessment
during the next three years, so that an annual review would
serve little practical purpose". The principle behind this
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instruction is that the sword of Damocles must not bang over
the officer every six months after he attains the age of 50
years.
The learned Solicitor General next submitted that the High
Court was not right in going behind the order of compulsory
retirement and delving into the files of the Government to
see for itself whether the order could be sustained. We
find that the records of service of the respondent and other
papers were produced by the learned Advocate General before
the High Court without any objection and without claiming
any privilege with regard to those documents. That being
534
the factual position, we are not inclined to consider
whether the course adopted by the High Court in this case is
open to objection. It will, however, be proper to observe
that when an order of compulsory retirement is challenged as
arbitrary or mala fide by making clear and specific
allegations, it will then be certainly necessary for the
Government to produce all the necessary materials to rebut
such pleas to satisfy the court by voluntarily producing
such documents-as will be a complete answer to the plea. It
will be for the Government also to decide whether at that
stage privilege should be claimed with regard to any
particular document. Ordinarily, the service record of a
Government servant in a proceeding of this nature cannot be
said to be privileged document which should be shut out from
inspection.
The impugned order of compulsory retirement, as found above,
was made on the recommendation of the second Review
Committee and that is in the teeth of the conditions of
service flowing from the instructions of the Home Ministry
and hence cannot be sustained. The High Court was right in
quashing the said order.
In the result both the appeals are dismissed although not on
the ground stated by the High Court. The respondent is
entitled to one set of costs to be shared by both the
appellants.
M.R.
Appeals dismissed.
535