Full Judgment Text
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PETITIONER:
BALDEV RAJ CHADHA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT18/08/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION:
1981 AIR 70 1981 SCR (1) 430
1980 SCC (4) 321
CITATOR INFO :
RF 1982 SC 793 (5)
R 1984 SC 630 (4)
R 1987 SC 948 (7,11)
RF 1987 SC1871 (6)
R 1988 SC1368 (22)
R 1988 SC1388 (25)
RF 1992 SC1020 (22)
ACT:
F. R. Rule 56(j)(i)-Compulsory retirement-Officer with
continuous service of 14 years and crossing efficiency bar
whether can be compulsorily retired- Appropriate authority-
Retiring authority-Meaning of.
HEADNOTE:
The appellant, an accounts officer, was promoted and
appointed by the Comptroller and Auditor General of India.
He was compulsorily retired on 27th August, 1975 in the
public interest under F. R. Rule 56(j)(i) by the Accountant
General. The appellant challenged his pre-mature retirement
in the High Court by a Writ Petition which was dismissed in
limine. In his appeal by Special Leave, the appellant
challenged the order of retirement and argued that (i) the
Accountant General is not "appropriate authority" within the
meaning of the rule and (ii) the retirement was not in the
public interest. The respondent contended that (i) the power
of the appropriate authority in respect of accounts officers
like the appellant was vested in the Auditor General by
Notification of the Ministry of Finance dated 19-1-1972 and
(ii) the impugned order of compulsory retirement was made by
the Accountant General on the basis of the recommendations
dated 23-8-1975 of the Reviewing Committee.
Allowing the appeal.
^
HELD: An officer with continuous service for 14 years
crossing the efficiency bar and reaching the maximum salary
in the scale and with no adverse entries at least for five
years immediately before the compulsory retirement cannot be
cashiered on the score that long years ago, his performance
had been poor, although his superiors had allowed him to
cross the efficiency bar without qualms. The order of
compulsory retirement fails because vital material, relevant
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to the decision, has been ignored and obsolete material,
less relevant to the decision, has influenced the decision.
[439D-E]
Any order which materially suffers from the blemish of
overlooking or ignoring wilfully or otherwise vital facts
bearing on the decision is bad in law. Likewise, any action
which irrationally digs up obsolete circumstances and
obsessively reaches a decision based thereon, cannot be
sustained. [429 F]
The Fundamental Rules govern the Central Civil Services
and ensure the career security which is the sine qua non of
contended service. But potential compulsory retirement under
F. R. 56 (j) (i) haunting the afternoon of official life
injects an awesome uncertainty which makes even the honest
afraid. the efficient tremble and almost everyone genuflect,
and is not a happy prospect for a Civil Servant too young to
sit idle and too old to get a new job. A jetsam has no
option but to become driftwood or join the other profession
where everyone, desirable and undesirable, has a chance.
This deleterious latency
431
of F.R. 56(j)(i) is stressed to underscore the unwitting
harm to public interest it does in the name of public
interest. Judicial monitoring becomes an unpleasant
necessity where power may be humour and a career may be a
victim. [432 E-G]
The order to retire must be passed only by the
appropriate authority. That authority must form the
requisite opinion-not subjective satisfaction hut objective
and bona fide and based on relevant material. The requisite
opinion is that the retirement of the victim is in public
interest not personal political or other interest but solely
governed by the interest of public service. The right to
retire is not absolutely, though so worded. [433 C-D]
Since the A.G. has been clothed, from 29-11-1972 with
power to appoint substantively Accounts officers, he has
become the appropriate authority for compulsory retirement
even though the appellant had been appointed by the C & AG
prior to 29-11-1972. In the light of the note which is part
of the rule, read with the notification delegating the power
to the A.G., there is no flaw in the order impugned.
[434 A-B]
Ordinarily the appointing authority is also the
dismissing authority but the position may be different where
retirement alone is ordered. The specific provision in the
Note to FR 56 must hold good and Art. 311 is not violated
either. Nor is there any discrimination, because retirement
is a category different from the punishment covered by Art.
311. [434C]
Security of tenure is the condition of efficiency of
service. The Administration, to be competent, must have
servants who are not plagued by uncertainty about tomorrow
At the age of 50, your experience, accomplishment and
fulness of fitness become an asset to the Administration, if
any only if you are not harried or worried. These
considerations become all the more important in departments
where functional independence, fearless scrutiny, and
freedom to expose evil or error in high places is the task.
And the Ombudsmanic tasks of the office of audit vested in
the C & AG and the entire army of monitors and minions under
him are too strategic for the nation’s financial health and
discipline that immunity from subtle threats and oblique
overawing is very much in public interest. Under the guise
of public interest if unlimited discretion is regarded
acceptable for making an order of premature retirement, it
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will be the surest menace of public interest and must fail
for unreasonableness, arbitrariness and disguised dismissal.
The exercise of power must be bona fide and promote public
interest. [434 F-H, 435 A-B]
Judges cannot substitute their judgment for that of the
Administrator but they are not absolved from the minimal
review well-settled in administrative law and founded on
constitutional obligations. Administration, to be efficient,
must not be manned by drones, do-nothings, incompetents and
unworthies. It is in public interest to retire a never-do-
well, but to juggle with confidential reports when a man’s
career is at stake is a confidence trick contrary to public
interest. Confidential reports are often subjective,
impressionistic and must receive sedulous checking as basis
for decision making. [435D, E-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1390/1978.
Appeal by special leave from the Judgment & Order,
dated 26-3-1976 of the Punjab & Haryana High Court in Civil
Writ Petition No 506/76.
Baldev Raj in person.
U.R. Lalit and Miss A. Subhashini for the Respondent.
432
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The appellant, an Accounts Officer
compulsorily retired betimes, appearing in person, has
painstakingly and proficiently presented his case which
calls for mercy, if not justice obsession with one’s own
case and inability to see things in perspective are often a
frailty of a party who spends the enormity and anguish of
his superannuated leisure on the main pursuit of his
litigative points, and this makes for prolixity and
subjectivity of submissions, which are not the persuasive
but the provocative part of the art of advocacy. Even so, we
have listened with sympathy to the studious orality and read
with patience the manuscript arguments emanating from the
appellant. He was an Accounts officer since December 30,
1961, having been so promoted and appointed by the
Comptroller and Auditor General of India (C & AG). The story
of his career was snapped when he was compulsorily retired
’in the public interest’ on August 27, 1975 under; F.R.
56(j)(i) by the Accountant General (A.G.). Had he run his
full course, his continuance until April 1980 would have
been sure. Finding himself an uneasy casualty when the easy
axe of F.R. 56(j)(i) fell on him, the appellant challenged
the premature retirement in the High Court only to be
greeted with a dismissal in limine. Here he has arrived by
special leave and argued before us that his forced
retirement is dubious and violative, in many ways, of F.R.
56(j)(i).
The Fundamental Rules govern the Central Civil Services
and ensure the career security which is the sine qua non of
contended service. But potential compulsory retirement under
F.R. 56(j)(i) haunting the afternoon of official life
injects an awesome uncertainty which makes even the honest
afraid, the efficient tremble and almost everyone genuflect-
not a happy prospect for a civil servant too young to sit
idle and too old to get a new job. A jetsam has no option
but to become driftwood or join the other profession where
everyone, desirable and undesirable, has a chance. We stress
his deleterious latency of F.R. 56(j)(i) to underscore the
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unwitting harm to public interest it does in the name of
public interest. Judicial monitoring becomes an unpleasant
necessity where power may be humour and a career may be a
victim.
The grounds on which the order of retirement has been
challenged by the appellant may be formulated immediately
after quoting the rule itself:
56(j): Notwithstanding anything contained in this
rule the appropriate authority shall, if it is of the
opinion that it is the public interest to do so have
the absolute right to retire any
433
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 Class I or Class II service or
post and had entered Government service before
attaining the age of thirty-five years after he has
attained the age of fifty-years.
Note 1: Appropriate authority, means the authority
which has the power to make substantive appointment to
the post or service from which the Government servants
is required or wants to retire.
A break-down of the provision brings out the basic
components. The order to retire must be passed only by ’the
appropriate authority’. That authority must form the
requisite opinion-not subjective satisfaction but objective
and bona fide and based on relevant material. The requisite
opinion is that the retirement of the victim is ’in public
interest’-not personal, political or other interest but
solely governed by the interest of public service. The right
to retire is not absolute, though so worded. Absolute power
is anathema under our constitutional order. ’Absolute’
merely means wide, not more. Naked and arbitrary exercise of
power is bad in law. These essentials once grasped, the
appellant’s submissions become self-evident.
His principal contentions, not all the secondary
details, alone need detain us. His first challenge is to the
competence of the Accountant General compulsorily to retire
him because, according to the appellant, he is not the
’appropriate authority’ within the meaning of the rule. The
appointing authority who actually appointed the appellant
was the C & AG, but the A.G. retired him on the assumption
that he had the requisite power. Article 311(1) insists that
a civil servant shall not be dismissed or removed by an
authority "subordinate to that by which he was appointed".
The appellant, by parity of reasoning, argues that the A.G.,
being subordinate to the C & AG, has no power to retire him.
The fallacy in the argument lies in the confusion between
’dismissal’ and ’compulsory retirement’. The two cannot he
equated and the constitutional bar cannot be operative.
Therefore, we have to find, on an independent enquiry, as to
who is the appropriate authority under r. 56(j)(i). Under
Note 1 to F.R. 56, the authority entitled to make
substantive appointments is the appropriate authority to
retire government servants under the said rules. From this
Note, which is virtually a part of the rule, the respondents
contend that the power of the appropriate authority in
respect of
434
Accounts Officers like the appellant has been vested in the
A.G. by Notification of the Ministry of Finance dated
29-11-1972. Since the A.G. has been clothed, from that date,
with power to appoint substantively Accounts Officers, he
has become the appropriate authority for compulsory
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retirement even though the appellant Accounts Officer had
been appointed by the & AG prior to 29-11-1972. In the light
of the note which is part of the rule, read with the
notification delegating the power to the A.G., we see no
flaw in the order impugned.
No doubt, ordinarily the appointing authority is also
the dismissing authority but the position may be different
where retirement alone is ordered. There, the specific
provision in the Note to FR 56 must hold good and Art. 311
is not violated either. Nor is there any discrimination, as
contended for, because retirement is a category different
from the punishments covered by Art. 311.
Who is the retiring authority on a given date? This is
answered by the Note which, in substance, says that he who
is empowered to appoint the Accounts officer is also the
appropriate authority to retire compulsorily, on that date.
In this view, we cannot nullify the retirement of the
appellant for want of competence.
This takes us to the meat of the matter, viz., whether
the appellant was retired because and only because it was
necessary in the public interest so to do. It is an
affirmative action, not a negative disposition, a positive
conclusion, not a neutral attitude. It is a terminal step to
justify which the onus is on the Administration, not a
matter where the victim must make out the contrary. Security
of tenure is the condition of efficiency of service. The
Administration, to be competent, must have servants who are
not plagued by uncertainty about tomorrow. At the age of 50
when you have family responsibility and the sombre problems
of one’s own life’s evening!, your experience,
accomplishments and fullness of fitness become an asset to
the Administration, if and only if you are not harried or
worried by ’what will happen to me and my family?’ ’Where
will I go if cashiered?’ How will I survive when I am too
old to be newly employed and too young to be superannuated?’
These considerations become all the more important in
departments where functional independence. fearless
scrutiny, and freedom to expose evil or error in high places
is the task. And the ombudsmanic tasks of the office or
audit vested in the C & AG and the entire army of monitors
and minions under him are too strategic for the nation’s
financial health and discipline. that immunity from subtle
threats and oblique overawing is very much in public
interest. So it is that we must emphatically state that
435
under the guise of ’public interest’ if unlimited discretion
is regarded acceptable for making an order of premature
retirement, it will be the surest menace to public interest
and must fail for unreasonableness, arbitrariness and
disguised dismissal. To constitutionalise the rule, we must
so read it as to free it from the potential for the
mischiefs we have just projected. The exercise of power must
be bona fide and promote public interest. There is no
demonstrable ground to infer mala fides here and the only
infirmity alleged which deserves serious notice is as to
whether the order has been made in. public interest. When an
order is challenged and its validity depends on its being
supported by public interest the State must disclose the
material so that the court may be satisfied that the order
is not bad for want of any material whatever which, to a
reasonable man reasonably instructed in the law, is
sufficient to sustain the grounds of ’public interest’
justifying forced retirement of the public servant. Judges
cannot substitute their judgment for that of the
Administrator but they are not absolved from the minimal
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review well-settled in administrative law and founded on
constitutional obligations. The limitations on judicial
power in this area are well-known and we are confined to an
examination of the material merely to see whether a rational
mind may conceivably be satisfied that the compulsory
retirement of the officer concerned is necessary in public
interest.
We will consider this question to the extent disclosed
by the record and in the light of the submissions made by
both the parties. The whole purpose of the rule is to weed
out the worthless without the punitive extremes covered by
Art. 311 of the Constitution. After all, administration, to
be efficient, must not be manned by drones, do nothings,
incompetents and unworthies. They may not be delinquent who
must be punished but may be a burden on the Administration
if by insensitive, insufficient, unintelligent or dubious
conduct impede the flow or promote stagnation, in a country
where speed, sensitivity, probity. and non-irritative public
relations and enthusiastic creativity are urgently needed
but paper-logged processes and callous cadres are the
besetting sin of the Administration. It is in public
interest to retire a never-do-well, but to juggle with
confidential reports when a man’s career is at stake is a
confidence trick contrary to public interest. Moreover,
confidential reports are often subjective, impressionistic
and must receive sedulous checking as basis for decision-
making. The appropriate authority, not the court, makes the
decision, but, even. so, a caveat is necessary to avoid
misuse
We are inclined to ignore the case that the appellant
was retired because he had declined ’to proceed on leave
forcibly in September 1974’. While it is reprehensible for
Government or any in the higher
436
echelons to compel a civil servant to go on leave on pain of
being suspended, retired or transferred to a far-off place
or indifferent post-and the court may readily infer mala
fides in the subsequent order if there is proof of
antecedent pressure to take forced leave-we cannot judge the
legality of a compulsory retirement on suspicions and
apprehensions invariably urged even by deserving victims.
Let us look at the facts from these broad lines of Law.
The A.G. has, in vindication of his action, submitted that
"the impugned order of compulsory retirement was made by the
Accountant General on the basis of the recommendations dated
23-8-1975 of the Reviewing Committee constituting the
following officers:
1. Accountant General
2. Senior Deputy Accountant General (IC)
3. Senior Deputy Accountant General (Administration)
Punjab
4. Deputy Accountant General (Administration) Office
of the Accountant General, Haryana.
The said Committee reviewed the service record of the
appellant and found adverse entries in various confidential
reports, and inter-alia, held that the appellant was unable
to perform his duty efficiently and effectively in the post
held by him and recommended compulsory retirement under FR
56(j)(i). The appellant was accordingly retired by the
Accountant General on 27-8-1975".
We are not inclined to agree with the appellant that
the Reviewing Committee is an illegal body and taking its
recommendations into consideration vitiates the A.G.’s
order. On the other hand, it is clear that the decision to
retire is surely that of the A.G., and the Reviewing
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Committee’s presence is persuasive, not decisive, and
prevents the opinionatedness of one by the collective
recommendations of a few.
Now we will enter the substantive dispute and search
for the presence of public interest as the basis of the
impugned order. The A.G., Mr. Khanna has, in his affidavit
in this court, sworn:
In this connection I respectfully submit that the
Petitioner’s work was found to be below average and
that fact was noted by the appropriate authority in the
confidential reports of the
437
petitioner as per details given below:
____________________________________________________________
Period of Adverse Remarks Date of
Report Communication
____________________________________________________________
1961-62 Yes. An Average Officer.
Though he did try to tackle
the arrears in the GAD
section under his charge.
I was unhappy to observe
that he was trying to shield
those who shirked work. I
also noticed that while he
was anxious to bring to my
notice persons who did their
duties well, he was willing
to play down the lapse on
their part, if any, without
adequate justification. 5.12.1962
14.12.64 A mediocrity who should take more Adverse
to interest in the work remarks
20.3.65 noted on
15.1.66
29.7.69 Industry and application. Poor
to
15.11.70
Ability to organise and manage Poor,
sections competently. Adverse
remarks
communica-
ted on May
1970.
General Assessment:An average
officer who would do better
if he showed more initiative
and resourcefulness.
1.4.70 1.Technical ability:Below average
to 3(a) Ability to organise and manage
9.12.70 sections competently. Poor
(b) Ability to control subrodi-
nates and get the best out
of them. Poor
10. General Assessment:Below Adverse
Average. My remarks against remarks
1,3(a)(b) and 10 may be seen. communica-
The performance of Shri ted, on
Chaddha as the officer-in- 29th Sept.
charge of the Account Current 1971.
sections was not upto the
mark and consequently he had
to be given a change. This
officer is definitely below
average.
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438
The aforementioned adverse remarks in the
confidential reports of the petitioner were
communicated in all the cases to the Petitioner and the
Petitioner made representation which was rejected by
the competent authority after due consideration. At the
time of the review of the retention of the petitioner
and other accounts officers, a Committee consisting of
Accountant General, Senior Deputy Accountant General
(IC), Senior Deputy Accountant General, (Admn.), Office
of the Accountant General, Haryana was constituted to
review the cases of the Accounts officers for their
retention, on their attaining the age of 50 years. The
said Committee was constituted on 23-8-1975. The said
Committee after careful assessment of the performance
of the employees concerned depicted in their
confidential reports found that the persons including
the Petitioner who were not able to perform their duty
efficiently and effectively in the posts held by them
at that time and the Committee therefore recommended to
retire the Petitioner among others under F.R 56(j)(i).
A copy of the minutes of the meeting held is annexed
herewith as Annexure Y.
The Reviewing Committee report runs thus:
"The Committee after a careful assessment of the
performance of the employees concerned as depicted in
their confidential reports have come to the conclusion
that the persons mentioned below are not able to
perform efficiently and effectively the duties of the
posts held by them.
(1) Shri Baldev Raj Chadda, Accounts Officer."
A bare glance at the confidential reports of the
appellant brings out the striking fact that they relate to
1961-62 to the end of 1970.
The appellant was promoted only in 1961 and was
regularly drawing increment for well over a decade, without
let or hindrance. What is far more significant is the
further fact that the Reviewing Committee and the A.G.
appear to have ignored entries in yearly/half yearly reports
in the seventies. The appellant states categorically:
"A perusal of the extract from the Confidential
reports would show that there were no adverse remarks
in the Confidential Reports of the Appellant for the
year 1971-72, 1972-73, 1973-74, 1974-75 and 1975-76
till the date of his retirement from service on
27-8-75."
He further rightly points out that the stand of the
A.G. before the High Court was that the impugned order was
not grounded on the adverse entries:
Since the adverse entries in the Confidential
Reports of the petitioner were not, in terms, stated to
be the ground for exer-
439
cising the powers under F.R. 56(j), it was not
necessary for the Respondent to deal with the various
allegations levelled by the petitioner against the
higher authorities in this regard.
We must read these materials against the further background
set out by the appellant:
If I was considered to be unsuitable to continue
to officiate as Accounts officer even after 14 years of
continuous service without break and after I reached
the maximum of the scale both old/revised without being
held up or even delayed at E.B. or for increment, then
the proper course open to the authorities was to take
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action against me under C.C.S. (C.C.A.) Rules 1965 to
revert me and not to retire me by taking shelter under
F.R. 56(j)(i) to avoid initiating disciplinary action.
This is thus a clear case of vindictive misuse of
powers by the Appointing Authority under F.R. 56(j).
One wonders how an officer whose continuous service for 14
years crossing the efficiency bar and reaching the maximum
salary in the scale and with no adverse entries at least for
five years immediately before the compulsory retirement,
could be cashiered on the score that long years ago, his
performance had been poor, although his superiors had
allowed him to cross the efficiency bar without qualms. A
short cut may often be a wrong cut. The order of compulsory
retirement fails because vital material, relevant to the
decision, has been ignored and obsolete material, less
relevant to the decision, has influenced the decision. Any
order which materially suffers from the blemish of
overlooking or ignoring, wilfully or otherwise, vital facts
bearing on the decision is bad in law. Likewise, any action
which irrationally digs up obsolete circumstances and
obsessively reaches a decision based thereon, cannot be
sustained. Legality depends on regard or the totality of
material facts viewed in a holistic perspective. For these
reasons, the order challenged is obviously bad and we quash
it. It is, however, open to the A.G. to take a fresh
decision based on legal material and guided by legal
principles. The appellant has, by now, reached the age of
superannuation in the normal course. The result is that the
consequence of any fresh order may only be financial. It is
for the A.G. to consider whether in the circumstances, a
fresh evaluation for the purpose of compulsory retirement is
called for. We merely allow the appeal, quash the order of
compulsory retirement and leave the law to take its course.
The appellant will be entitled to costs which we quantify at
Rs. 2,000.
N.K.A. Appeal allowed.
440