Full Judgment Text
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PETITIONER:
R. L. BUTAIL
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
08/09/1970
BENCH:
[M. HIDAYATULLAH, C.J., J. M. SHELAT, G. K. MITTER,C. A. VAIDIALINGAM AND A. N. RAY, JJ.]
ACT:
Departmental Rules-Central Water and Power Commission (Power
Wing)-Adverse entries in confidential reports whether must
set out specific instances justifying them-Whether must be
made after reasonable opportunity to show cause-Non-
promotion on basis of such entries whether punishment
attracting Art. 311 of Constitution.
Fundamental Rules-Rule 56(1)-Compulsory retirement-Validity
of rule-’Public interest.’
HEADNOTE:
The appellant, an electrical engineer, entered the service
of Simla Electricity Board in 1934. In 1949 his services
were transfeere d to the Central Electricity Commission,
later designated as Central Water and Power Commission
(Power Wing). In 1955 he was also promoted to the post of
Direct(* and was confirmed as such with effect from 1960.
There were adverse remarks in his confidential reports for
the years 1964 and 1965. On these being communicated to him
he made representation asking for specific instances on
which adverse information about him bad been recorded.
These representations were rejected. In the meantime the
question of filling the post of Director (Selection
Grade)/Deputy Chief Engineer arose. Both in 1964 and 1965
the appellant was over-looked by the Departmental Promotion
Committee and the Union Public Service Commission for this
post or that of a member. Later with effect from August 15,
1967, on completion of the age of 55 years he has compul-
sorily retired under r. 56(j) of the Fundamental Rules made
under Art. 309 of the Constitution. The appellant filed
three writ petitions in the High Court of Punjab challenging
the validity of the said entries. and the said order of
compulsory retirement. The High Court dismissed all the
writ petitions. Appeal in this Court was filed with
certificate. The appellant’s contentions which fell for
consideration were (1) that the said two confidential
reports were contrary to the Departmental Rules in as much
as they did not set out specific instances justifying them;
(2) that they were placed before the Departmental Promotion
Committee and the Public Service Commission before they were
communicated to him and he was prejudiced thereby; (3) that
the refusal of the Departmental Promotion Committee to
recommend him for the higher posts and of the Public Service
Commission to select him based on such invalid reports was
also invalid; (4) that making an adverse entry which
resulted in withholding promotion to him amounted to a
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penalty; since no opportunity was given to him of being
heard in this respect, there was a violation of Art., 311 of
the Constitution; (5) that making an entry without holding a
departmental inquiry and hearing him was contrary to natural
justice; (6) that the adverse entries in question were
contrary to facts; (7) that the ’said entries were mala
fide; (8) that the higher posts to which he was eligible
were promotion and not selection posts at the relevant time;
(9) that the order compulsorily retiring him was bad in as
much as Fundamental Rule 56(j) was itself invalid; (10) that
in any
56
event the order was not made in public interest and was,
therefore, contrary to the rule and also, Arts. 14 and 16 of
the Constitution.
HELD: (1) An examination of the departmental rules
clearly shows that a confidential report is intended to be a
general assessment of work ,performed by a Government
servant subordinate to the reporting authority, that such
reports are maintained for the purpose of serving as data of
comparative merit when questions of promotion, confirmation
etc. arise. They also show that such reports are not
ordinarily to contain .specific instances upon which
assessments are made except in cases where as a result of
any specific incident censure or a warning is issued and
when such warning is by an order to be kept in the personal
file of the ;Government servant. Such cases an officer
making the order- has to give reasonable opportunity to the
Government servant to present his case. The contention,
therefore, that the adverse remarks against the appellant
did not contain specific instances and were, therefore,
contrary to the rules could not be sustained. Equally
unsustainable was the corollary that because of that
omission the appellant could not make an adequate repre-
sentation and that therefore the confidential reports were
vitiated. [62 C--E]
(2) Whenever a Government servant is aggrieved by an
adverse entry he has an opportunity of making a
representation. Such a representation would be considered
by a higher authority, who, if satisfied would either amend,
correct or even expunge a wrong entry, so that it is not as
if an aggrieved Government servant is without remedy.
Making adverse entry is not equivalent to imposition of a
penalty which would necessitate an enquiry or the giving of
a reasonable opportunity of being heard to the ,Government
servant. It does not amount to the penalty of censure set
out in r. 11 of the Central Civil Service (Classification,
Control & Appeal) Rules. [62 H]
(3) The confidential report in respect of the appellant for
the year 1964 was prepared on March 18, 1966. Since the
Departmental Promotion Committee had met in 1964, obviously,
the adverse entry for the year 1964 was not and could not be
before that Committee. If at all the Committee declined to
recommend the appellant’s name because of adverse
confidential reports, such reports could only be for the
earlier years. The record showed that confidential reports
for 1955, 1956 and 1959 were adverse to, him. The
confidential report for 1965 was prepared in 1966.
Therefore, that report also would not be before the
Committee when it declined to recommend the appellant in
1965. The fact that the appellant’s representation against
the report for 1964 was not before the Committee when it
made its recommendation did not make any difference. The
representation made by the appellant though made
subsequently was actually rejected with the result that the
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confidential report for 1964 remained unchanged. The
practice followed by the Promotion Committee was that if in
such a case a representation were to be accepted and in
consequence the confidential report was altered or expunged,
the Promotion Committee would have to review its re-
commendations in the light of such result. In the present
case no question of such a review arose as the reports for
1964 and 1965 were, in spite of representations by the
appellant neither altered nor set aside. There was,
therefore, no question of injustice having been done to the
appellant despite the fact that the Committee had before it
the confidential report without there being along with it
any representation made by the appellant. Nor did the
question of breach of natural justice arise in view of the
aforesaid practice followed by the Promotion Committee. [63
F-64 D]
57
(4) Under r. 11 of the Central Services Rules, 1965,
although with holding promotion is not a penalty which
could be imposed on a Government servant; the explanation
thereto expressly provides that non-promotion of a
Government servant after consideration of his case does not
constitute a penalty. There was, therefore, no question of
the department having to hold an inquiry and then only to
decide not to promote the appellant to the higher posts. [64
E]
(5) The appellant could also not challenge his non-
promotion on the ground of seniority alone. The post of a
Member was declared to be a selection post by the President
as early as in 1952. By Rules made by the President under
Art. 309 dated November 6, 1965, the post of a Member along
with certain other posts was declared to be a selection
post. The respondent’s counter affidavit clearly affirmed
that the post was a selection post. The burden of proving
otherwise was on the appellant which he had not discharged.
On the material brought on record it could not be held that
the post of a Member was not a selection post so that the
mere fact of the appellant being the seniormost amongst the
Directors in the department could not entitle him to be
appointed [64 F65 B]
(6) The appellant had been unable to prove that the action
against him was mala fide. [69 H-70 A]
(7) The validity of r. 56(j) cannot be challenged in view
of the earlier decisions of this Court [,71 F-G]
Union of India v. Vol. J. N. Sinha, [1971] 1 S.C.R. 791,
applied.
Moti Ram Deka v. General Manager, N.E.F. Railway, [1964] 5
S.C.R. 587, Gurdev Singh Sidhu v. Punjab, [1964] 7 S.C.R.
587, T. C. Shivacharana Singh v. Mysore, A.I.R. 1965 S.C.
280 and Takhatrav Shivdatrai Mankad v. Gujarat, [1969] 2
S.C.C. 120, referred to.
(8) On the facts of the case it could not be held that the
order of compulsory retirement was not in public interest or
that the authority concerned had not applied its mind. [72
D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1614 to
1616 of 1968.
Appeals from the judgments and orders dated April 10, 1968
of the Delhi High Court in Civil Writs Nos. 608-D and 607-D
of 1966 and 1550 of 1967.
The appellant appeared in person (in all the appeals).
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Jagadish Swarup, Solicitor-General, L, M. Singhvi and S. P.
Nayar, for the respondents (in all the appeals).
Shyamala Pappu, Bindra Thakur and Vineet Kumar, for the
Intervener (in C.A. No. 1616 of 1968).
ORDER
After having heard and considered the arguments urged on
behalf of the parties we are of the view, for reasons which
we shall set out later on, that all the three appeals fail
and should be35Sup CI/71
58
dismissed. Order accordingly. The appellant will pay to
the respondents the costs of these appeals. Such costs to
be one set of costs.
The Judgment of the Court was delivered by
Shelat, J. On August 14, 1970 we pronounced our order dis-
missing these three appeals with costs stating at the time
that our reasons for the same would follow. The order was
pronounced at the request of the appellant who desired that
we should do so before August 15, 1970 when he was
completing 58 years of his age. Accordingly we are now
setting out the reasons for the said order.
The three appeals, by certificate, question the validity of
two ,confidential reports for the years 1964 and 1965 made
against the appellant by the reporting and the reviewing
officers in the Central Water and Power Commission (Power
Wing) and the order dated May 12, 1967 by which the
appellant was compulsorily retired on his attaining the age
of 55 years.
The appellant, an electrical engineer, began his career in
the Simla Electricity Supply Undertaking and worked there
from 1934 to 1949. In 1949, he was appointed as a Project
Officer in the Central Electricity Commission, now
designated the Central Water and Power Commission (Power
Wing). He was confirmed in that post in 1950 and later on
was promoted to the post of a director, in which post he was
working since 1955. He was confirmed in that post by an
order, dated April 15, 1963 with retrospective effect from
August 5, 1960.
By a communication dated September 16, 1965 he was informed
of an adverse entry in the annual confidential report for
the year 1964. The entry reads as follows :
".... A ’Problem Director’ in that it falls
to the inevitable lot of some member to have
him under his charge and manage as far as
practicable. . "
"....I agree with the above even though the
officer is intelligent and capable of good
work if he wishes to apply himself
wholeheartedly."
By another communication dated July 7, 1966 the appellant
was informed that an adverse entry had been made in his
confidential’ report also for the year 1965. That entry
reads as follows
"His work during the year was below the
average, considering his senior position in
the Directors’ Cadre. Shri Butail can do good
work if he like(s) to do so."
59
On receiving these communications the appellant made repre-
sentations in which he asked for specific instances on which
adverse opinions about him had been recorded. These
representations were, however, rejected. In the meantime,
the question of filling in the post of Director (Selection
Grade)/Deputy Chief Engineer arose. According to the
appellant, this post as also certain other higher posts
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including that of a member were promotion posts. Being the
only permanent director amongst the candidates, he was the
seniormost of them all and claimed that he, was for that
reason entitled to be promoted. Both in 1964 and 1965,
however, he was overlooked by the Departmental Promotion
Committee and the Union Public Service Commission.
On May 12, 1967, he was served with an order compulsorily
retiring him from service with effect from August 15, 1967
on completion of the age of 55 years. The order was made
under r. 56(j) of the Fundamental Rules made under Art. 309
of the Constitution.
The appellant filed three writ petitions Nos. 608 and 607 of
1966 and 1550 of 1967 in the High Court of Punjab
challenging the validity of the said entries and the said
order of compulsory retirement and praying that the said two
entries should be expunged and proper entries made, that the
orders declaring him unfit for promotion and the said order
of compulsory retirement should be quashed. The High Court
dismissed all the writ petitions, Hence these appeals.
The appellant contended (1) that the said two confidential
reports were contrary to the rules inasmuch as they did not
set out specific instances justifying them; (2) that they
were placed before the Departmental Promotion Committee as
also the Public Service Commission before they were
communicated to him, and therefore, before he could make
representations against them. that the consequence was that
the said two bodies had before them the said reports only
and were not aware of his objections to them; (3) that the
refusal of the Departmental Promotion Committee to recommend
him for the higher posts and of the Public Service
Commission to select him, based on such invalid reports. was
also invalid; (4) that making an adverse entry which
resulted in withholding promotion to him amounted to a
penalty; therefore, an adverse entry which had such a result
would be governed by Art. 31.1 and could not be made unless
before making it the concerned Government servant was given
a reasonable opportunity of being heard; (5) that, in any
event, making such an entry without first holding a
departmental inquiry and hearing such a Government servant
was contrary to natural _justice; (6) that his work as a
director was satisfactory, that the said entries were
contrary to facts and that no reasonable person would have
arrived at such
60
adverse conclusions as recorded in the entries; (7) that the
said entries were made, mala fide; and (8) that the higher
posts to which he was eligible were promotion and not
selection posts at the relevant time, that they were made
selection posts only in November 1965, and therefore, being
the only permanent director amongst all the rest of the
directors, he was entitled by his seniority to the hip-her
post in preference to others. Even assuming that those
posts were at the relevant time selection posts, he being a
permanent director, his case could not be referred to the
Public Service Commission.
Regarding the order compulsorily retiring him, the
contention was that Fundamental Rule 56(j) was invalid, that
in any event the order was not made in public interest as
his work as a director was satisfactory and was therefore
contrary to the Rule and also Arts. 14 and 16 of the
Constitution,
The question raised in regard to the impugned confidential
entries is thus three fold. Firstly, whether the reporting
authority was required to give specific instances to enable
the appellant to make an adequate representation. Secondly,
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whether the reporting officer was bound to hear the
appellant before deciding to make the entry. And thirdly,
whether such an entry amounts to censure, one of the
penalties provided by r. 1 1 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965. That rule
enumerates several penalties which can be imposed on a
Government servant and amongst minor penalties there set out
are (i) censure, and (ii) withholding a promotion.
Compulsory retirement is under the rule one of the major
penalties.
In considering this question we may at the very outset
notice that the rules regarding preparation and maintenance
of confidential reports, are by way of departmental
instructions and are neither statutory rules nor rules made
under Art. 309. Prior to 1961 these instructions were
contained in an office order dated July 28, 1955 issued by
the Central Water and Power Commission (Water Wing). We do
not know whether they also applied to the Power Wing. But
for the present we will assume that they applied to the
Power Wing. R. 2 of these rules sets out the object of
maintaining confidential reports, viz., to ensure that
promotions were made with the utmost fairness to the
officers on the one hand and with due regard to the interest
of the public service on the other. The rules, therefore,
enjoin upon officers at each level to keep a proper watch
over the work and conduct of those below them and provide
training and guidance to such officers whenever necessary.
For this purpose a continuous record of service in the form
of confidential reports of all the officers working in the
Commission was necessary. Rr. 3 and 7 indicate that what
was required was a general assessment of work for the whole
of the year, the conduct
61
of the officer concerned, his efficiency, ability,
initiative or lack of it etc. and not a judgment with
reference to any specific incident. R. 7 in express terms
provides that an adverse entry relating to a specific
incident should not ordinarily find place in a character
roll, unless, in the course of departmental proceedings a
specific punishment such as censure has been awarded on the
basis of such an incident. Where, however, a reporting
officer feels that though the matter is not important enough
to call for departmental proceedings, it is important enough
to be mentioned specifically in the confidential report, he
should, before making such an entry, satisfy himself that
his own conclusion has been arrived at only after a
reasonable opportunity has been given to the officer report-
ed to present his case relating to the incident. The rule
also provides that while communicating adverse remarks to
the officer concerned the substance of such remarks and not
their actual wordings need be conveyed.
On March 3, 1961, an office order was issued by the Commis-
sion which superseded all instructions issued previously on
the subject of maintenance of confidential reports. This
order applied to all officers of the Commission, gazetted
and non-gazetted, and also to its subordinate offices. The
order once again recites the importance of preparing and
maintaining confidential reports. R. 4 requires that such a
report should contain an appreciation of the general
qualities of the Government servant such as integrity,
intelligence, keenness, industry, tact, attitude towards his
superiors and subordinates, relations with fellow-employees,
work-attitudes etc., and also "a summing-up" in general
terms of the Government servant’s good and bad qualities and
a categorisation or rating such as ’Outstanding’, ’Very
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good’, ’Good’, ’Fair’, or ’Poor’. Such a categorisation is,
however, not necessary in the case of officers of or above
the rank of Superintending Engineer. Rule 10 expressly
provides that the reporting authority is not required to
give any specific instances of his good or bad work or
conduct upon which the opinion is based. R. 28 provides
that while communicating an adverse remark to the concerned
Government servant the substance of such report and not its
actual wording need be conveyed. That is because the
primary object of such communication is, firstly, that the
concerned Government servant may remedy his defects, and
secondly, that it should serve as a timely warning to the
Government servant of such defects which might otherwise
deprive him of chances of promotion in future. R. 32
entitles a Government servant to make a representation.
Such representation would be examined by an officer superior
in rank to the reviewing officer. That officer would either
reject the representation or alter the remark where he
thinks necessary and in the event of his finding that the
remark is actuated by malice or is incorrect or unfounded,
be would expunge it. R. 34 provides that adverse
62
centuries relating to any specific incident will not
ordinarily find place in the confidential record. But,
where a warning is issued as a result of any specific
incident, a copy thereof will ordinarily be kept in the
personal file of the Government servant concerned. In that
case he has to make a specific order to that effect. But
before making such an order he must give to the concerned
Government servant a reasonable opportunity to present his
case relating to the incident. In case, departmental
proceedings are instituted as a result of such an incident
and a formal punishment, such as censure, is awarded, a copy
of the order of such punishment should invariably be placed
in the confidential record of the Government servant.
These rules abundantly show that a confidential report is
intended to be a general assessment of work performed by a
Government servant subordinate to the reporting authority,
that such reports are maintained for the purpose of serving
as data of comparative merit when questions of promotion,
confirmation etc. arise. They also show that such reports
are not ordinarily to contain specific incidents upon which
assessments are made except in cases where as a result of
any specific incident a censure or a warning is issued and
when such warning is by an order to be kept in the personal
file of the Government servant. In such a case the officer
making the order has to give a resonable opportunity to the
Government servant to present his case. The contention
therefore, that the adverse remarks did not contain specific
instances and were, therefore, contrary to the rules, cannot
be sustained. Equally unsustainable is the corollary that
because, of that omission the appellant could not make an
adequate representation and that therefore the confidential
reports are vitiated.
Further, the rules do not provide for nor require an
opportunity to be heard before any adverse entry is made.
The contention that an enquiry would be necessary before an
adverse entry is made suffers from a misapprehension that
such an entry amounts to the penalty of censure set out in
r. 1 1 of the Central Civil Services (Classification,
Control and Appeal) Rules. The entry is made under the
Office Order of 1961 set out above by way of an annual
assessment of the work done by the Government servant and
not by way of a penalty under the said Central Civil
Services Rules. True it is that such remarks would be,
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taken into consideration when a question such as that of
promotion arises and when comparative merits of persons
eligible for promotion are considered. But then, whenever a
Government servant a aggrieved by an adverse entry he has an
opportunity of making a representation. Such a
representation would be considered by a higher authority,
who, if satisfied, would either amend, correct or even
expunge a wrong entry, so that it is not as if an aggrieved
Government servant is without remedy. Making of an adverse
entry is thus not
63
equivalent to imposition of a penalty which would
necessitate an enquiry or the giving of a reasonable
opportunity of being heard to the concerned Government
servant. This part of the appellant’s grievance, therefore,
has to be rejected.
The Departmental Promotion Committee and the Union Public
Service Commission which met in 1964 and 1965 did not recom-
mend or select the appellant for the post of Director
(Selection Grade) or that of a Member. The argument was
that being the only permanent director amongst all the rest
of the directors,. he was the senior most of them all. Yet,
one Aswath was first promoted to the post of Director
(Selection- Grade) in December 1964 and then a few days
later to the post of Member. In this connection the
appellant’s allegations were two. The first was that the
adverse confidential reports for 1964 and 1965 were placed
before the Departmental Promotion Committee and the
Commission long before they were communicated to him and
therefore before he could make any representation against
them. Consequently, the two bodies had no opportunity of
knowing his side of the case and relying on the said reports
only overlooked his right to promotion. Further, the
refusal to recommend him for the higher post amounted to
withholding of promotion, a penalty which could not be
inflicted on him without a departmental inquiry. The second
was that in any case Aswath ought not to have been raised to
the higher post as allegations of financial irregularities
were outstanding against him in consequence of which he
resigned on August 1, 1965 and left for the United States of
The confidential report in respect of the appellant for the
year 1964 was prepared on March 18, 1965. It was, no doubt,
released to the appellant on September 16, 1965. But the
Promotion Committee met in May 1964 and recommended Aswath
for the post of Director (Selection Grade). Aswath was
promoted to that post in December 1964. Obviously, the
adverse entry for the year 1964 was not and could not be
before that Committee. If at all the Committee declined to
recommend the appellant’s name because of adverse
confidential reports, such reports could only be for the
earlier years. The record shows that confidential reports
for 1955, 1958 and 1959 were adverse to him. These had been
communicated to him from time to time and the appellant had
made representations against them and bad failed. Aswath
was appointed a member on December 30, 1964 when the appel-
lant was again overlooked both by the Promotion Committee
and the Public Service Commission. But that again could not
be on account of the confidential report for 1964, which as
aforesaid, was recorded much later in March 1965.
64
The confidential report for 1965 was prepared in 1966.
Therefore, the report for 1965 would not be before that Com-
mittee when it declined to recommend the appellant in 1965.
This time the report for 1964 would be before it and’ that
too without his representation against it as,, that report
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had been conveyed to the appellant in September 1965. That
fact, however, cannot make any difference. The
representation made by the appellant, though made
subsequently, was actually rejected with the result that the
confidential report for 1964 remained unchanged. The
practice followed by the Promotion Committee was that if in
such a case a representation were to be accepted and in con-
sequence the confidential report was altered or expunged.
the Promotion Committee would have to review its
recommendations in the light of such a result. In the
present case, however, no question of such a review arose as
reports for 1964 and 1965 were, in spite of representations
by the appellant, neither altered nor set aside. There was,
therefore, no question of any injustice having been done to
the appellant despite the fact that the Committee had before
it the confidential report without there being along with
it, any representation made by the appellant. Nor did the
question of a breach of natural justice arise in view of the
aforesaid practice followed by the Promotion Committee.
Under r. 11 of the Central Services Rules, 1965, although
withholding promotion is one of the penalties which can be
imposed on a Government servant, the explanation ’thereto
expressly provides that non-promotion of a Government
servant after consideration of his case does not constitute
a penalty. There was, therefore, no question of the
department having to hold an enquiry and then only to decide
not to promote the appellant to the higher post. Again no
question of breach of the principles of natural justice
arises in such a situation.
The appellant also cannot challenge his non-promotion on the
ground of seniority alone. It appears that the post of a
Member was declared to be a selection post by the President
as early as 1952. That decision is evidenced by the letter
dated March 15, 1952, Appendix III to the counter-affidavit
of the respondents in Writ Petition No. 608/D of 1966. By
rules made by the President under Art. 309, dated November
6, 1965, the post of the Member along with certain other
posts was once again declared to be a selection post. The
respondents’ counter-affidavit clearly affirms that the post
was a selection post and that when Aswathi was appointed to
that post in December 1964. the selection made from amongst
the candidates was on an all India basis and not on the
footing that the post was one where appointment was to be
made on the basis of seniority in the Department alone. The
appellant has not shown that the statement in the said
letter of March 15, 1952 that the President bad declared the
post of
65
Member a selection post was not correct or that that
declaration was not under Art. 309. For such a challenge
the burden of proof was upon him, a burden which he has not
discharged. We are, therefore, bound on the material
brought by him on record to proceed on the footing that the
post of a Member was a selection post since 1952, and
therefore, the fact of his being the seniormost amongst the
directors in the department did not by itself entitle him to
be appointed.
The appellant’s contention that Aswath ought not to have
been appointed first to the post of Director (Selection
Grade) and then as a Member as there were allegations of
financial irregularities against him was denied by the
respondents. The contention involves questions of disputed
facts. We do not think that the circumstances of the
present case make it necessary for us to undertake the task
of inquiring into such disputed facts which require leading
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considerable additional evidence by both the parties. But
assuming that there were allegations made against that
officer, both the Promotion Committee and the Public Service
Commission were competent to take that fact into
consideration and assess its worth. On the materials on
record we can hardly be called upon to arrive at any such
assessment and substitute our opinion in place of theirs.
We cannot consequently accede to the appellant’s contention
that his non-promotion to the aforesaid superior posts or
either of them was vitiated for any of the reasons advanced
by him.
On the question of non-promotion, the appellant had demanded
disclosure of the proceedings before the Promotion
Committee, which demand was resisted by the respondents by
claiming privilege. In our opinion it is not necessary to
go in this case into the vexed question of privilege,
firstly, because the demand for disclosure was in the nature
of a fishing inquiry into the papers relating to the
proceedings of that Committee, and secondly, because the
adverse confidential reports, which, according to the
appellant, were responsible for the Committee’s refusal to
recommend his name, were communicated to the appellant and
have been produced by him. The demand for disclosure of
those prcceeding’s, therefore, cannot be entertained as a
bona fide demand.
There, now remains his allegation of mala fides. In Writ
Petition 1 550 of 1967 relating to the order of compulsory
retirement the appellant bad stated that in order that this
allegation may be properly appreciated he would set out in
one consolidated statement, Ex. G to that petition, all the
incidents on which be relied upon to, prove his case of mala
fides. The allegations collected in that exhibit briefly
stated are as follows : (i) that he was declared unfit for
promotion to favour Aswath in spite of a warning having been
given to him for financial irregula-
66
rities, that the said Aswath resigned and left for the
U.S.A. as soon as the appellant took resort to the court and
that some higher authorities were also involved in those
irregularities; (2) that though the Promotion Committee met
in 1963 no promotions were recommended; that this was
"presumably" done because Aswath could not then be promoted
on account of the said warning; (3) that there was no
adverse confidential report against the appellant for 1963;
therefore, when the Promotion Committee met in 1964, his
grading could not be reduced. Yet, he was superseded, in
spite of his being the only permanent director, by three
officers who had not yet been confirmed as directors.
"Presumably" he was declared unfit for promotion as the said
Aswath did not get a grading higher than "good"; that the
post of Member was filled in by direct recruitment and not
by promotion "presumably" because the Promotion Committee
was prejudiced against him as he had taken recourse to the
court and desired that lie should be superseded by Aswath;
(5) that the appellant was desirous of ascertaining whether
those who made and confirmed adverse entries against him
were also involved in the said alleged financial
irregularities and whether they sat on the Promotion
Committee which declared him unfit for promotion; (6) that
as he was superseded by three officers who were not yet
confirmed as directors he applied for the reasons for
withholding promotion from him. Instead of furnishing those
reasons the appellant was given threats and a transfer order
which had the effect of his having to work under Aswath, the
said two adverse reports and finally the order of compulsory
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retirement; (7) that though he called for the files relating
to the said transfer orders to ascertain if he had been
shown responsible for the failures of the reporting officer,
V. Venugopalan, their production was refused on the plea of
privilege; (8) that in 1958, the appellant complained
against the Administrative Officer, one Dhawan, and demanded
a disciplinary enquiry against him, that no action was taken
against that officer and the appellant "fears" that some
grave irregularities were made in that case "and the same
are being used to prejudice the authorities against him".
He called for the connected file but its production was
refused on the ground of privilege; (9) that in the matter
of Dhawan, the appellant’s personal assistant, one Nidhan
Singh, was asked to disclose the evidence which the
appellant had collected against Dhawan, that Nidhan Singh
was victimised for his refusal to do so, and therefore,
successfully filed two writ petitions, that while one of
them was pending, one K. P. S. Nair and the said Venugopalan
asked the appellant to file false affidavits which the
appelant refused; (10) that the work of the appellant in
each of the directorates where he worked was satisfactory
though the volume of work was increased and the minimum
essential staff was not made available to him, that though
there were no causes for complaint against him, the
appellant was served with the order
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compulsorily retiring him; (ii) that the adverse
confidential report for 1964 was put up before the Promotion
Committee months before it was communicated to him resulting
in withholding of his promotion; (12) that under the
regulations made under Art. 320 of the Constitution the
appellant’s case for promotion had not to be Placed either
before the Promotion Committee or the Public Service
Commission. The President’s order declaring the superior
posts for which the appellant was \ eligible as selection
posts was made months after the selection by those bodies.
The said posts not being selection posts then, if the
appellant was to be denied promotion a departmental enquiry
was necessary under r. 16 of the Central Civil Services
Rules, 1965; and (13) that while the present writ petitions,
were still pending, he was asked to vacate the premises
occupied by him and the allotment thereof in his favour was
cancelled.
In the counter-affidavit filed by the Under Secretary to the
Ministry of Irrigation and Power it is denied that Aswath
was promoted to the post of the Member, the respondents’
case being that the post was a selection post and Aswath was
appointed in that post on the basis of an all India
selection by the Union Public Service Commission. The
selection was made on merits with due regard to seniority
and not seniority alone, and the appellant was not appointed
to that post because the Commission did not find him fit
enough for that post. The counter-affidavit denied that
Aswath had committed any financial irregularities or that he
had resigned or left India because of any such alleged
irregularities. He resigned and went to U.S.A. to take up a
more remunerative post. Barring a bare allegation, no
materials are brought on record by the appellant to prove
the alleged irregularities by Aswath or his having resigned
and left this country on account of any such alleged
irregularities or of any action having been taken against
him. There is also no material on record to justify the
allegation that "some higher authorities" were also involved
in those alleged irregularities. Allegations 2, 3 and 4 are
merely conjectures on the appellant’s part and are not based
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on facts. There is no material on record to show that
Aswath was given any warning or that the Promotion Committee
did not recommend any promotions in 1963 because, in
consequence’ of such an alleged warning. Aswath could not
be promoted in’ that year. The counter-affidavit concedes
that there was no adverse confidential report against the
appellant for the year 1963. It also concedes that amongst
the directors the appellant was the only confirmed director.
The respondents’ case, however, was that promotions to the
higher posts, such as that of the Director (Selection
Grade), Deputy Chief Engineer, Member etc., were made on
merits with due regard to seniority and not seniority alone,
as those higher posts were selection posts. Appointment
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to those posts were made on the basis of recommendations by
the Promotion Committee, who made such recommendations after
considering the comparative merits of persons who were
eligible. The fact that the appellant was senior to the
rest of the directors did not, therefore, mean that he had
for that reason alone to be recommended. The allegation
that the Promotion Committee was prejudiced against him
because he had taken resort to the court cannot be seriously
taken. There is no averment as to who amongst the members
of that Committee were prejudiced against him as alleged, or
whether and how they were affected by his having gone to the
court. Allegation (5) is obviously irrelevant on the
question of mala fides and the demand made there was
actuated by a desire to have a fishing inquiry into the
records. There is nothing on record which would cast any
doubt that the members of the Promotion Committee did not
make their recomendations on the basis of comparative merits
of the candidates before them, whose records of service were
before the Committee. As regards the allegation about the
transfer orders, the respondents’ reply was that they were
made according to the administrative exigencies. There is
no evidence on record to show that they were actuated by any
malice or any such other motive. It may be that the
appellant might have felt galling to have to work under
Aswath after Aswath had been appointed to the higher post.
It is possible to take the view that such a position should,
if possible, have been avoided. But the fact that the
appellant would have to work under Aswath by itself cannot
necessarily mean that that particular transfer order was
made mala fide. Allegation (7) is again sheer conjecture.
Further, it is founded on an assumption that there were
failures on the part of the said Venugopalan and that an
attempt was made to shift those failures on to the
appellant. Regarding the case of Dhawan, it was conceded
that in 1958 the appellant had asked for a disciplinary
inquiry against that officer. No action, however, was taken
against him presumably because no case was made out
justifying such an enquiry. The allegation that the
appellant "fears that some grave irregularities have been
made in this case" (i.e., in the matter of Dhawan) and that
the same were now being used against him is again a matter
of speculation on the appellant’s part and is, therefore, no
evidence on which the question of mala fides can be decided.
Allegation (9) was denied by K. P. S. Nair and Venugopalan
in their respective affidavits. Beyond the assertion by the
appellant and the denial by Nair and Venugopalan there is no
independent material on which one can judge the truth or
otherwise of the allegation. In the proceedings referred to
there, Dhawan had filed an affidavit denying that Nidhan
Singh was asked to disclose the evidence collected by the
appellant against him or that Nidban Singh for his refusal
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to do so was victimised. There is no material to show that
Dhawan’s said affidavit was
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disbelieved in those proceedings. As regards allegation
(10), the appellant’s own estimate of his work cannot be a
basis for any decision. According to the counter-affidavit,
the staffing of each, directorate in the Commission depended
on the available staff and the exigencies of work in each
department. Even assuming that the appellant was not given
an adequate staff, it does not follow that that was done
with any mala fide object. Allegation (11) has already been
considered, and therefore, we need not repeat what has been
earlier stated. As regards allegation (12) we have already
referred to the letter, dated March 15, 1952 stating that
the posts to which the appellant was aspiring had been
declared selection posts by the President. There is nothing
on record to show that the contents of that letter were not
correct or that the President had not validly made such- a
declaration. If those posts were thereupon made selection
posts and the selection for them were to be made on the
basis of an all India selection, it is difficult to
understand the appellant’s case that because he was a
confirmed director his case need not have to go before the
Promotion Committee and the Public Service Commission. In
any event, consideration of his case, as also the cases of
others by the Promotion Committee has no relevance so far as
the case of mala fides is concerned. Further, there is
nothing to show that the reporting officer and the reviewing
authority, who were responsible for the confidential reports
relating to the appellant, were members of the Promotion
Committee or were in any event responsible for the appellant
not having been recommended. The last allegation that the
demand from him of the premises allotted to him was made
because of animus against him has no relevance to the case
of mala fides, as that demand must have been made in the
usual course after the order of compulsory retirement was
passed. Obviously, he could not be allowed to retain
possession of those promises once be was made to retire from
service.
As earlier stated, some of the allegations as to mala fides
are matters of conjectures and speculation and some are
vague in the sense that they do not specify who the
particular officers were who mala fide made adverse entries
against him, as, during the years 1955 to 1965 there were
various officers who as part of their duty had. to make
assessment of the appellant’s work and record such
assessment in his confidential reports. Reading the
material on record one cannot help forming an impression
that the appellant had entertained a high estimate of the
work done by him, was piqued by his not having been
recommended and selected for the higher posts to which he
believed be bad become entitled and began since then to
nurse an obsessed feeling of being persecuted by all who
were above him. In view of the reasons afore-stated, we are
of the view that he has not been able to make out a case,
70
of mala fides in spite of his long and detailed arguments
before us.
As stated earlier, W. P. 1550 of 1967 challenged the
validity of the order by which the appellant was
compulsorily retired from service with effect from August
15, 1967 when he completed the ,age of 55 years. The order
was admittedly passed under r. 56(j) of the Fundamental
Rules, as amended by Fundamental (Sixth Amendment) Rules,
1965. Cl. (a) of that rule provides that, except as
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otherwise provided in the rule, every Government servant
shall retire on the day he attains the age of 58 years. Cl.
(d), however, authorises the Government to grant extension
of service up to the age of 60 years provided such extension
is in public interest and the grounds therefor are recorded
in writing. Cl. (j), with which we are presently concerned,
reads as follows :
"Notwithstanding anything contained in this
Rule, the appropriate authority shall, if it
is of the opinion that it is in the public
interest to do so, have the absolute right to
retire any Government servant after he has
attained the age of fifty-five years by giving
him notice of not less than three months in
writing :"
The Office Memorandum, dated July 10, 1966 issued by the
Ministry of Home Affairs provides (1) that six months before
a Government servant attains the age of 55 years, his case
should be reviewed and a decision taken whether or not his
retention in service beyond the age of 55 years is in public
interest, and (2) that once a decision is taken to retain
him beyond the age of 55 years, such Government servant
would continue in service automatically till he attains the
age of compulsory retirement. i.e., 58 y‘ars of age. It
further provides that if the appropriate authority considers
that retention of a Government servant beyond the age of 55
years is not in public interest, such authority must take
necessary action to serve three months notice in terms of
cl. (j) of F. R. 56. That the requisite notice in terms of
cl. (i) of F.R. 56 was served on the appellant is not in
dispute. In Union of India v. Col. J. N. Sinha(1) this
Court stated that F. R. 56(j) in express terms confers on
the appropriate authority an absolute right to retire a
Government servant on his attaining the age of 55 years if
such authority is of the opinion that it is in public
interest so to do. The decision further states
"If that authority bona fide forms that
opinion, the correctness of that opinion
cannot be challenged before courts. It is
open to an agrieved party to contend that the
requisite opinion has not been formed or the
decision is based on collateral grounds or
that it is an arbitrary decision."
(1) [1971] 1 S.C.R. 791.
71
The appellant relied on Moti Ram Deka v. General Manager,
N.E.F. Railways(1) where rules 148 (3) and 149 (3) of the
Indian Railway Establishment Code were held to contravene
Art. 311 (2), and therefore, invalid. That decision cannot
apply to the present case as the rules there in question
dealt with the right to terminate service on notice of a
prescribed period. ’The Court there held that a rule cannot
confer on the Railway administration power to terminate
service while at the same time laying down the age, of
superannuation so as to be in contravention of the pro-
visions of Art. 311(2). Similarly, in Gurdev Singh Sidhu v.
Punjab(1) a rule conferring an absolute right to retire a
Government servant after he had completed ten years of
qualifying service, though providing that such power shall
not be exercised except when it is in public interest, was
struck down as contravening Art. 311(2). The Court,
however, held that there were two valid exceptions to the
protection afforded by Art. 3 11 (2). These were (1) where
a permanent public servant was asked to retire on the ground
that he had reached the age of superannuation which was
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reasonably fixed, and (2) that he was compulsorily retired
under the rules which prescribed the normal age of super-
annuation and provided a reasonably long period of
qualifying service after which alone compulsory retirement
could be ordered. The first would not amount to dismissal
or removal from service within Art. 311(2) and the second
would be justified by the view taken by this Court in a long
series of decisions. In T. C. Shivacharana Singh v. Mysore,
( 3 ) rule 255 of the Mysore Civil Services Rules, 1958
conferring power on Government to retire compulsorily a
Government servant in public interest on his completing
twenty-five years of qualifying service or attaining fifty
years of age, though the age of normal superannuation under
r. 95 (a) was fixed at fifty-five years, was upheld on the
ground that the rule laid down a reasonably long period of
qualifying service. (See Takhatrav Shivdatrai Mankad v.
Gujarat, (4) particularly the observations at p. 123).
Since the question of validity of such a rule has thus been
concluded, such a challenge is no longer available to the
appellant.
The affidavit in reply by the respondents, dated February 6,
1968, in clear terms avers that before passing the impugned
order the appropriate authority, in accordance with the said
Office Memorandum of the Ministry of Home Affairs, reviewed
the case of the appellant and came to the conclusion that it
was in public interest that he should be compulsorily
retired on his attaining fifty-five Vears of age. The
affidavit also avers that the appropriate authority had
"carefully considered all relevant factors
(1) [1964] 5 S.C.R. 587.
(3) A.I.R. 1965 S.C. 280.
(2) [1964] 57 S.C.R. 587.
(4) [1969] (2) S.C.C. 120.
72
relating to the case of the petitioner (the appellant) and
came to the definite opinion that it was not in the public
interest to retain the petitioner in service beyond the date
on which he attained the age of fifty-five years." In their
reply-affidavit, dated July, 10, 1967, in *.P. 1550 of 1967
it is further stated that before the said decision was
reached, the appellant’s entire service record was
considered including his confidential reports, that where
such reports were adverse they had been earlier comnunicated
to him from time to time, that the appellant had made
representations against them to the competent authority and
even personal interviews before superior officers had been
granted to him to vindicate his point of view. It was after
all this had been done and the confidential reports had
remained unaltered that the appropriate authority considered
his entire record of service and then reached the conclusion
that F. R. 56(j) should be resorted to. It may well be that
in spite of the work of the appellant being satisfactory. as
he claimed it was, there may have been other relevant
factors, such as the history of the appelant’s entire
service and confidential reports throughout the period of
his service, upon which the appropriate authority may still
decide to order appellant’s retirement under F. R. 56(j).
Further, there is nothing to show that the impugned order
was not in public interest. As aforesaid, Col J. N. Sinha’s
case(1) clearly lays down that the question as to the
correctness of such a decision by the appropriate authority,
provided it is bona fide, would not be gone into by this
Court. We have already negatived the plea of mala fides
raised by the appellant. Consequently, a plea of lack of
bona fides can hardly be entertained. Likewise, the plea
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that the appropriate authority had not applied its mind must
also fail in view of the clear averments made in that regard
in the affidavits cited earlier, no reason having been
adequately shown to discard those statements as untrue or
otherwise unbelievable. That being the position, we are
constrained to come to the conclusion that the appellant
has-failed to make out his case in any one of his three writ
petitions.
The appeals must fail and are dismissed with costs.
G.C. Appeals
dismissed.
(1) [1971] 1 S. C. R. 791.
73