JUDGMENT
P.M. Chauhan, J.
1. Petitioner, an Assistant Examiner. Local Funds Account, serving under the Director of Accounts and Treasuries, was served with a notice dated August 26, 1977 informing That he should be compulsorily retired from the Government service with effect from November 30, 1977, under the provisions of Rule 161. Bombay Civil Services Rules (to be referred to as “B.C.S.R.”‘) and. accordingly. was made to retire from the service on November 30, 1977 as he had attained the age of 55 years. Petitioner made a representation against the order of retirement to the higher authorities, but That was also rejected by the Government on November 24, 1977. Petitioner has challenged the order of premature retirement at the age of 55 years on various grounds and, by this writ, has prayed for declaring the order illegal and bad, and violative of Articles 14 and 16, Constitution of India. According to the petitioner, he should have been given opportunity, to serve in (the lower grade of Class II Accounts Officer and as he was not given that opportunity the order by the Competent Authority is mala fide. According to the petitioner, that order, without giving him opportunity to work as Class II Officer, is an outcome of malice against the petitioner by the authorities. Petitioner also contended that he is compulsorily made to retire as a part of the campaign of removing all the promotees who had attained the position of Class I Officer and replacing the posts by direct recruits. The contention of the petitioner is that, the higher authorities tried to remove the petitioner only because the petitioner was occupying the position as the Class I Officer as a promotee and, as such, there was no ground much less the reason “in the public interest” for the premature retirement from the service. The petitioner also contended that he was promoted from Class II to Class I Junior Duty Officer post in the Accounts Service and was allowed to cross the Efficiency Bar, and that establishes his efficiency to hold the post. It is also contended that the Competent Authority issuing the notice has not formed the requisite opinion to the effect that the petitioner should be retired in the public interest, but the decision is based on collateral grounds and, as such, the action of the Government retiring the petitioner is mala fide, arbitrary and on collateral grounds, and, therefore, bad and illegal. Petitioner also states that compulsorily retiring him from the service without giving him the opportunity to serve in the lower grade offends the provision of Articles 14 and 16, Constitution of India as it amounts to discrimination and not affording the opportunity to serve. Petitioner also contended that other ten officers belonging to the said cadre, who were the promotees, were also served with the notice of premature retirement with an ulterior motive to see that no promotee may occupy Class I post.
2. The respondent-State has asserted the absolute power of the Government to retire the petitioner in the public interest, as provided in Rule 161, B.C.S.R. and also contended that the decision to retire the petitioner was taken on the basis of the confidential reports and also as a result of the review of his overall performance during the last 10 years by the Review Committee constituted for the purpose. According to the respondents, the petitioner was considered as below average standard and, therefore, it was felt his retention in the service in the lower grade, i.e. Class 11 would have not served the purpose and, therefore, he was, not offered the lower post. The allegation about the campaign to remove the Class 1 promotee officers is also denied in the affidavit filed by Shri J.P. Mehta, Under Secretary to the Government. Finance Department. Shri Mehta has deposed that the criteria for allowing the Government servant to cross Efficiency Bar are different from that for continuing in service beyond the age of 50-55 years. The decision was taken on the basis of the review of the overall performance of the petitioner during the period of last 10 years and it is not based on collateral grounds or extraneous circumstances.
3. As provided in Rule 161, B.C.S.R., the date of the compulsory retirement of the Government servant other than a Class IV Servant is the date on which he attains the age of 58 years. The proviso to Rule 161 specifically provides that, an appointing authority shall, if the appointing authority is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant, by giving him the notice of not less than three months in writing or three months pay and allowances in lieu of such notice, if the Government servant is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of direct recruitment to which is below 35 years, on or after the date on which he attains the age of 50 years, and if he is in any other service or post, the age limit for the purpose of direct recruitment to which is below 40 years, on or after the date on which he attains the age of 55 years. Shri G.D. Bhatt, learned Assistant Government Pleader, on instructions, states that the age limit for the purpose of the direct recruitment of the Assistant Examiner, Local Funds Account is 35 years and, therefore, the petitioner can be compulsorily made to retire on or after the date on which he attains the age of 50 years. The Rule specifically provides for the absolute right of the Government or the appointing authority provided, in the opinion of the appointing authority or the Government, it is in the public interest to retire the Government servant. That absolute right can, however, be challenged on the grounds of mala fide, arbitrariness or the ground of collateral purpose. The law on the point is now well settled, by various judgments of the Supreme Court In J.D. Srivastava v. State of M.P. , the Supreme Court was considering the fundamental Rule 56(3). Even though the Rule did not provide specifically about the absolute right of the Government to retire the Government servant on attaining the age of 55 years, the Supreme Court, after considering the vanous authorities of the Supreme Court, in terms observed that it is now firmly settled that the power to retire a Government servant compulsonly in public interest in terms of service rule is absolute, provided the authority concerned forms an opinion bona fide that it is necessary to pass such an order in public interest. It is also observed that, it is equally well settled that, if such decision is based on collateral grounds or if the decision is arbitrary, it is liable to be interfered with by Courts In that matter, the Additional District Judge was ordered to be retired compulsonly on attaining the age of 55 years and for the purpose of ascertaining as to whether the order was arbitrary, the Supreme Court considered the confidential reports and as there was no specific adverse entry in the confidential report, it was held that the order of premature retirement was arbitrary. Supreme Court in Brij Mohan Singh Chopra v. State of Punjab AIR 1987 SC 948, while considering the provisions of Rule 3 of the Punjab Civil Services (Premature Retirement) Rules, which are in pari materia to the provisions of Rule 161, B.C.S.R., observed that the purpose and object of premature or compulsory retirement of the Government employee is to weed out the inefficient, corrupt, dishonest or deadwood from the Government service. That right of the Government is well established which is generally exercised in accordance with the relevant Rules. The scope and ambit of exercise of that absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations. Supreme Court has expressed similar view as expressed in case of J.D. Shrivastava (supra) in R.L. Butail v. Union of India . As the legal position, about the absolute right of the Government for premature retirement of the Government servant under the relevant Service Rules is well settled, it is required to consider as to whether the Government bona fide decided to retire the petitioner on attaining the age of 55 years in the public interest or the order of the Government is arbitrary, mala fide or passed on collateral considerations. Even though Shri J.P. Mehta, in his short affidavit, denied the allegations about the mala fide and asserted that Committee has taken the decision bona fide. I called upon the learned Assistant Government Pleader to produce the confidential reports of the petitioner and also the file on which the decision was taken to retire the petitioner at the age of 55 years. It is true that the petitioner was promoted from Class II to Class I post on October 3, 1966 and was allowed to cross the Efficiency Bar on October 3, 1970, but that does not necessarily mean that the petitioner was considered efficient and it was not necessary in the public interest to retire him on attaining the age of 55 years. The confidential reports from April 1967 to March 1977 are produced and it is clear from the confidential reports from April 1966 to December 31, 1970 that the petitioner had earned the ‘Good’ remark in three confidential reports and ‘Fair” remark in four confidential reports. The adverse remark was passed in the year 1970 That the petitioner does not exercise properly the power delegated to him Inspite of that, the petitioner was allowed to cross the Efficiency Bar By Government Circular dated April 10, 1964, the criteria for allowing to cross the Efficiency Bar were positive merit and reasonably efficient and good, and that the service record is not merely ‘average’ or ‘tolerably good’ or ‘just satisfactory’. As the petitioner was allowed to cross the Efficiency Bar in October 1970, his service to that extent should be considered to be satisfactory and the Competent Authority could not have considered the services prior to that period such as to compulsorilv retire the petitioner from service. 1 have, therefore, to consider the confidential reports for the period from 1971 to 1977, i.e., till the date the notice was served to the petitioner. From January 1, 1971 to August 17, 1971, the petitioner was graded ‘Fair’ and ‘Average’ and in the general assessment, it was stated that the petitioner is an officer with good character but wild temperament. For the period from October 10, 1971 to December 31, 1971 and from January 1, 1972 to December 31, 1972, the confidential report of the petitioner was graded “Good”. In the year 1973, the petitioner was graded “Fair”. From January 1, 1974 to June 6, 1974, the reporting officer graded the petitioner as “Good” but the reviewing authority graded him as “Fair”. From June 24, 1974 to March 31, 1975, the petitioner was graded as “Fair” and adverse remark to the effect that the petitioner has no adequate initiative and resourcefulness. For the period from April 1, 1975 to March 31, 1976, the petitioner was graded “Fair” and the adverse remarks to the effect that he lacks ability to participate effectively in discussions, does not possess proper and adequate initiative and at times he had shown the tendency to refer even minor matters to the Head Office, which could easily be decided by him. It was also stated that the petitioner was a very routine type of worker and did not take sufficient interest in work. For the period from June 8, 1976 to March 31, 1977, the petitioner was graded “Fair” and the adverse remarks were to the effect that the petitioner was finding it difficult to extract work from the subordinates and that he is not upto the mark for the duties of the grade. From the confidential, therefore, it is clear that right up from June 1974 to March 1977, not only that the petitioner was graded “Fair”, but adverse remarks were also passed against him. The adverse remarks were relating to the ability, initiative and administrative capacity. As such, it was also specifically stated that the petitioner was not upto the mark for the duties of the grade in which he was working. That being the ability of the petitioner to discharge his duties as a Class I Officer, it cannot be said mat the decision to compulsorily retire him from the service is not bona fide.
4. With a view to ascertaining the reasons for compulsory retiring the petitioner at the age of 55 years, I directed the learned Assistant Government Pleader to produce the file on which the decision was taken and on behalf of the Government, the cop of the notings on the relevant files are produced and also shown to the learned Advocate for the petitioner. The Director of Accounts and Treasuries. Shri P.V. Bhavsar, by his letter dated July 18, 1977. addressed to the Deputy Secretary to the Government of Gujarat, Finance Department, referred previous confidential DO. letter of Deputy Secretary and as desired in that letter, made proposal regarding the petitioner and other three Class 1 Officers, and also regarding four Class II Officers of the Department. So far as the petitioner was concerned, he stated that the C Rs. for last 10 years were mostly graded as “Fair” and there were adverse comments on various counts in different years. He also informed that the petitioner suffered from heart disease and had proceeded on leave on two occasions on account of his bad health during last two years. The petitioner had also complained that he was not keeping good health and applied for commuted leave for one month. Shri Bhavsar also stated That nothing adverse was noticed about the conduct of the petitioner. In view of Shri Bhavsar, it was “doubtful if his (petitioner’s) further continuance can be justified”. On the basis of the proposal, the Finance Department prepared note. So far as the petitioner was concerned, it was commended that during the period of 10 years, the petitioner was graded on number of occasions as “Fair” and adverse remarks were also passed against him both by the Reporting Officer as well as the Reviewing Officer. The details of the confidential reports are also specifically mentioned in it. About the health, it was noted that the petitioner did not keep good health and suffered from heart disease. The penultimate observation was “as the confidential records of Shri Dalai is not upto the standard and because he is not keeping good health, it is proposed to retire him prematurely on attaining the age of 55 years, i.e. 18-11-1977”. The noting by the Section Officer was approved by the Deputy Secretary and the Secretary, Finance Department and the file was then sent to the Special Secretary, General Administration Department. The Special Secretary, General Administration Department, recorded that out of the case of eight officers, he agreed with the proposal regarding petitioner Shri R.M. Dalal’s premature retirement. He also recorded that the petitioner was awarded adverse remarks by different reporting officers and in recent years also, and the performance of the petitioner has been definitely described as not upto the mark. He also recorded that the adverse remarks of the recent years were communicated to the petitioner. The Chief Secretary accepted the recommendation regarding the petitioner and also regarding Shri Desai and Shri Parmar, other two Class 1 Officers of the department, as in view of the Chief Secretary, as in view of the Chief Secretary, “at the 55 year stage we observe a more strict standard, and had 3 positively good reports in the last two years. Shri Desai and Parmar do not come upto the standard. F. D’s. recommendations may accepted.” The Minister of Finance then approved the proposal. It is, therefore, clear that at all levels the proposal for premature retirement of the petitioner was considered on merits and approved The petitioner is made to retire prematurely at the age of 55 years mainly because he was not upto the desired standard and adverse remarks were passed against him, and he was graded “Fair”. The decision of the Government and the appointing authority, therefore, cannot be considered 10 be lacking bona fides or cannot be said to be mala fide or arbitrary
5. The petitioner has mainly alleged mala fide of the appointing authority as, according to him, he was not given the opportunity to serve as the Class 11 Officer and about 10 promotee officers of his rank were made to prematurely retire at the age of 55 years To revert to Class I] post would amount to taking penal action or inflicting penalty on the petitioner and such decision could not have been taken by the Government without following the proper procedure. Apart from that, it would have worked more harsh to the petitioner as the retirement/terminal benefits of the petitioner would have been adversely affected. Merely because the petitioner was not given the opportunity of working in the lower grade that by itself does not amount to mala fides of the appointing authority. It is true that, alongwith the petitioner, the proposal was made for other two Class 1 Officers of his rank and four Class II Officers, but each individual case was considered on merits at all levels. Even the Special Secretary, General Administration Department was not prepared to accept the recommendation for other officers except that of the petitioner. Merely because other officers were also made to retire, that by itself is not sufficient to infer the mala fide of the appointing authority. Shri Mehta in his affidavit has categorically denied that allegation and, as such, there is no reason to accept it. In view of the discussion above, it also cannot be said that the retirement order is arbitrary.
6. It appears that the fact that the petitioner was suffering from heart disease and was not keeping good health and proceeded on leave for two occasions and had also applied for commuted leave for one month was considered as one of the additional grounds for retirement by the Director of Accounts and Treasuries, but the Special Secretary General Administration Department has not taken into consideration that aspect and has mainly relied on the inefficiency criterion, fair grading and adverse remarks passed and communicated to the petitioner. Even the Chief Secretary considered the efficiency aspect and the Minister of Finance agreed to that. The aspect of bad health of the petitioner has, therefore, did not weigh much with the appointing authority and, therefore, it cannot be said that the order is passed also on the basis of other collateral grounds. Shri G.D. Bhatt, learned Asstt. Government Pleader states that the ground of bad health could have been available for premature retirement only if the petitioner would have been advised to opt to retire. Admittedly, no such procedure was followed and, therefore, in the instant case, the ground of health should be considered a collateral ground. As defind in Stroud’s Judicial Dictionary, Fourth Edition, page 494 “Collateral” is “that which cometh in or adhereth to the side of anything: as collateral assurance is That which is made over and beside the deed itself The meaning of word “Collateral” as provided in the Oxford English Dictionary Volume II, page 616 is “together with; as adjective”, it means “situated or placed side by side” “accompanying, attendant, concomitant, lying aside from the main subject, line of action, issue, purpose, subordinate, indirect” The ground on the health was collateral in the sense that it was together with or placed side by side or accompanying other ground, but that had not weighed much with the Competent Authority in taking the decision nor was it the main ground on which decision was based. The decision was based on other grounds as discussed above. Out of various grounds for taking administrative decision or exercising absolute power, if some of the grounds are irrelevant, that would not vitiate the decision, provided the decision can be based on other relevant grounds.
7. In view of the fact that the decision of the Government is bona fide and the petitioner has not been able to establish mala fide or arbitrariness, it is not necessary for me to consider the criteria laid down by the Government in premature retiring the Government servant on attaining the age of 55 years. However, in short, that may be considered as Shri G.D. Bhatt, learned Assistant Government Pleader has referred various Government Resolutions laying down the criteria for the purpose. By G.R. dated October 25, 1963, the Government instructed to follow specified procedure and record reasons, and had directed that the Government servant (gazetted as well as non-gazetted) with atleast an average record of performance should not normally retile prematurely. It was modified by G.R. dated July 1, 1971 to the effect that the minimum standard expected of the Government servant (gazetted as well as non-gazetted) for retention in service beyond the age of 55 years should be atleast a “good” record of performance, and that the reviewing authority should not be guided merely by the grading given in the Government servants confidential records, but an overall review of his confidential reports should be made for making recommendation. It was also directed that the Government servant retained in service beyond the age of 55 years should not be allowed to continue upto the age of 58 years as a matter of course and the yearly review should be made. By G.R. dated August 4, 1975, the same position was reiterated with the modification that, while reviewing the case of the Government servants on attaining the age of 55 years or thereafter, only those Government servants should be retained in service beyond that age, who are graded atleast “good” during the last three years of their age, namely 52, 53 and 54. The intention in laying down that criterion was that the persons with a positive record of service only be continued beyond 55 years of age. The policy of considering confidential reports of three years was reconsidered by the G.R. dated November 2, 1976, and in modification of the G.R. dated August 4, 1975, if was directed that while reviewing cases for retention beyond 55 years of age. consideration should not be restricted 10 the last three years, but reports during the last eight to ten years should invariably be taken into account. These being criteria, merely because the petitioner was allowed to cross the Efficiency Bar before the period of about seven years, that by itself should not be the reason for holding that decision is without grounds or mala fide or arbitrary.
8. It is not contended by Shri Sheth. learned Advocate for the petitioner that the case of the petitioner was not reviewed at particular stages by competent authority or the committee and therefore, that aspect is not required to be considered.
9. Considering the absolute right of the Government under Rule 161, B.C.S.R., to retire the Government servant on attaiaing the age of 55 years and the criteria laid down for that, and also considering the confidential reports and the above discussed facts, the decision of the Government against the petitioner cannot be considered to be without bona fides or mala fide, arbitrary or based solely on collateral grounds. As such, this Court while exercising the jurisdiction under Article 226 of the Constitution of India, does not exercise the appellate jurisdiction and can interfere or quash the order only “on the above referred reasons.
The result is that the petition fails and must be dismissed. Petition is dismissed. Rule is discharged with no order as to costs.