Full Judgment Text
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PETITIONER:
BRIJ BIHARI LAL AGARWAL
Vs.
RESPONDENT:
HIGH COURT OF MADHYA PRADESH & ORS.
DATE OF JUDGMENT26/11/1980
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION:
1981 AIR 594 1981 SCR (2) 297
1981 SCC (1) 490
CITATOR INFO :
R 1984 SC 613 (4)
R 1987 SC 948 (7)
R 1988 SC1388 (26)
RF 1992 SC1020 (21)
ACT:
Compulsory retirement-Fundamental Rule 56(3) of the
Madhya Pradesh Shashikya Sewak (Adhiwarshikya Ayu)
Sanshodhan Adhiniyam-Compulsory retirement made on the
confidential reports from the early years of service and
also those not communicated at all to the employee, order of
compulsory retirement is invalid-Value of confidential
report, further explained.
HEADNOTE:
Allowing the appeal by special leave, the Court
^
HELD : (1) The recommendation by the High Court
regarding its satisfaction that the appellant should be
compulsorily retired, and the consequent order of the State
Government, acting on that recommendation is invalid. The
copy of an order-sheet dated 24th January, 1978 in Criminal
Appeal No. 1021 of 1972 containing serious criticism of the
manner in which the appellant had disposed of the sessions
case was not communicated to him at all, although placed on
the personal confidential file of the appellant. Further the
two confidential reports made by two successive Chief
Justices in respect of the appellant for overlapping periods
ex facie do not agree with each other. One report dated 24th
February, 1978 pertains to the year ending February, 1978
and contains general observations favourable to the
appellant or other dated 12th July, 1978 pertains to the
period 4th November, 1977 to March, 1978-a good part of
which period is covered by the first report-and the detailed
evaluation shows that the appellant was an undesirable
officer. [300E-H, 301A-D]
(2) The power to compulsory retire a Government servant
is a power which may be exercised in various contingencies.
[299B-C]
Union of India v. Col. J. N. Sinha, [1971] 1 S.C.R. 791
and State of Uttar Pradesh v. Chandra Mohan Nigam [1978] 1
S.C.R. 521, referred to.
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(3) When considering the question of compulsory
retirement, while it is no doubt desirable to make an
overall assessment of the Government servant’s record, more
than ordinary value should be attached to the confidential
reports pertaining to the years immediately preceding such
consideration. It is possible that a Government servant may
possess a somewhat erratic record in the early years of
service, but with the passage of time he may have so greatly
improved that it would be of advantage to continue him in
service up to the statutory age of superannuation. Whatever
value the confidential reports of earlier years may possess,
those pertaining to the later years are not only of direct
relevance but also of utmost importance. [300C-E]
R. L. Butail v. Union of India, [1971] 2 S.C.R. 55;
Gurdial Singh Fiji v. State of Punjab, [1979] 3 S.C.R. p.
518 and Union of India v. M. R. Reddy, [1980] 1 S.C.R. p.
736, followed.
298
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3272 of
1979.
Appeal by Special Leave from the Judgment and Order
dated 12-10-1979 of the Madhya Pradesh High Court in Misc.
Petition No. 227/79.
R.K. Garg, Miss Manisha Gupta and M.S. Gupta for the
Appellant.
K.K. Venugopal, Mrs. A.K. Verma and K.J. John for
Respondent No. 1.
S.K. Gambhir for Respondent No. 2.
The Judgment of the Court was delivered by
PATHAK, J.- This appeal by special leave is directed
against the judgment of the High Court of Madhya Pradesh
upholding an order compulsorily retiring the appellant from
the post of District and Sessions Judge.
The appellant, a member of the judicial service of
Madhya Pradesh, was promoted to the post of District and
Sessions Judge in April. 1969. On 6th October, 1977 an order
was made appointing him to a Selection Grade post. He was
thereafter appointed temporarily as Presiding Judge, State
Transport Appellate Tribunal, Madhya Pradesh, Gwalior. On
28th September, 1979 the State Government made an order
under Fundamental Rule 56(3) of the M.P. Shashkiya Sewak
(Adhiwarshika Ayu) Sanshodhan Adhiniyam. 1976 purporting to
retire the appellant in the public interest.
The appellant filed a writ petition in the High Court
of Madhya Pradesh against the retirement order, but the writ
petition was dismissed by the High Court on 12th October,
1979. Before the High Court the appellant did not dispute
that there was power to compulsorily retire him under
Fundamental Rule 56(3) but he contended that there was no
material before the High Court to lead to the conclusion
that his retirement would be in the public interest and he
described the order as mala fide and arbitrary. The High
Court noted that the petitioner had attained the age of 55
years and held that his retirement was in accordance with
the terms and conditions of service and in consonance with
Fundamental Rule 56, and rejected the contention that the
impugned order was mala fide or arbitrary.
The appellant contends that the High Court was not
justified in relying on adverse confidential reports which
had not been communicated to him and respecting which,
therefore, he had no opportunity to
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299
make his representation. Now the counter-affidavit filed on
behalf of the High Court shows that at the time of deciding
whether the appellant should be compulsorily retired the
High Court took into account the confidential reports of the
petitioner from the year he entered service. It appears
further from the counter-affidavit that some only of the
confidential reports were communicated to the appellant, the
last being for the period ending 31st March, 1966. It does
not appear that subsequent confidential reports containing
adverse entries were communicated to the appellant.
The power to compulsorily retire a Government servant
is a power which may be exercised in various contingencies.
Considering a comparable provision, Rule 56(j) of the
Fundamental Rules in Union of India v. Col. J. N. Sinha this
Court observed:
"Various considerations may weigh with the
appropriate authority while exercising the power
conferred under the rule. In some cases, the government
may feel that a particular post may be more usefully
held in public interest by an officer more competent
than the one who is holding. It may be that the officer
who is holding the post is not inefficient but the
appropriate authority may prefer to have a more
efficient officer. It may further be that in certain
key posts public interest may require that a person of
undoubted ability and integrity should be there. There
is no denying the fact that in all organisations and
more so in government organisations, there is good deal
of dead wood. It is in public interest to chop off the
same. Fundamental Rules 56(j) holds the balance between
the rights of the individual government servant and the
interests of the public’. While a minimum service is
guaranteed to the government servant, the government is
given power to energise its machinery and make it more
efficient by compulsorily retiring those who in its
opinion should not be there in public interest."
In State of Uttar Pradesh v. Chandra Mohan Nigam the Court
said:
"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 reason-
300
able 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 circumstances in which it is necessary to
communicate adverse entries made in confidential reports to
the Government servant concerned have been considered by
this Court in R. L. Butail v. Union of India in Gurdial
Singh Fijji v. State of Punjab and more recently in Union of
India v. M. E. Reddy. What we would like to add is that when
considering the question of compulsory retirement, while it
is no doubt desirable to make an overall assessment of the
Government servant’s record, more than ordinary value should
be attached to the confidential reports pertaining to the
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years immediately preceding such consideration. It is
possible that a Government servant may possess a somewhat
erratic record in the early years of service, but with the
passage of time he may have so greatly improved that it
would be of advantage to continue him in service up to the
statutory age of superannuation. Whatever value the
confidential reports of earlier years may possess, those
pertaining to the later years are not only of direct
relevance but also of utmost importance.
The High Court considered several confidential reports,
and on the impression gathered from them it concluded that
the appellant should be compulsorily retired. The record,
however, includes a copy of an order-sheet dated 24th
January, 1978 in Criminal Appeal No. 1012 of 1972 Bipata v.
State of Madhya Pradesh. The order-sheet contains an order
in which while disposing of a criminal appeal a Division
Bench of the High Court has recorded serious criticism of
the manner in which the appellant had disposed of the
sessions case. It does not appear that a copy of the remarks
made in the order-sheet, although placed on the personal
confidential file of the appellant, was ever communicated to
him.
The record also discloses that two confidential reports
were made by two successive Chief Justices in respect of the
appellant for overlapping periods. One report dated 24th
February, 1978 pertains to the year ending February, 1978
and contains general observations favourable to the
appellant. The other dated 12th July, 1978 pertains
301
to the period 4th November, 1977 to March, 1978-a good part
of which period is covered by the first report-and the
detailed evaluation shows that the appellant was an
undesirable officer. The two reports ex facie do not agree
with each other. This appears to have escaped the attention
of the High Court when it considered the question whether
the appellant should be compulsorily retired.
In the circumstances, it seems to us that the
recommendation by the High Court recording its satisfaction
that the appellant should be compulsorily retired, and the
consequent order of the State Government acting on that
recommendation, must be regarded as invalid. It will now be
for the High Court to consider the case again and take a
fresh decision on the question whether it should recommend
the compulsory retirement of the appellant, and for the
State Government to act on that recommendation if it is
made.
We consider it unnecessary to consider the further
submission of the appellant that his compulsory retirement
was not accompanied by payment of salary for the statutory
period of three months.
In the result, the appeal is allowed, the order dated
20th September, 1979 made by the State Government
compulsorily retiring the appellant from service, and the
recommendation of the High Court on which the order is
based, are quashed. It is open to the High Court and the
State Government to consider the matter afresh. There is no
order as to costs.
S.R. Appeal allowed.
302