JUDGMENT
M.Y. Eqbal, J.
1. In this writ petition, the petitioner has challenged the order dated 24.9.1996 by which he has been ordered to be prematurely retired from the service of the respondents, five years earlier than his actual date of superannuation. A copy of the impugned order has been annexed as Annexure 8 to the writ petition.
2. The petitioner joined the services of the Central Industrial Security Force (hereinafter to be referred to as ‘the CISF’) in the year 1968 and according to him he had un-blemished career record throughout and at no point of time of his career he was accorded any adverse entry in his service record. The petitioner claims to have very serious in his duties, which he was doing honestly and sincerely and he was awarded on different occasions, several commendation certificates. In the year 1991, the petitioner was promoted by the President of India on the post of Assistant Commandant vide Notification dated 18.3.1991. Consequent to his promotion in the year 1991, the petitioner was transferred to CISF Unit in the State of Madhya Pradesh. The petitioner alleged that immediately upon his transfer he started facing numerious hurdles in his performance of duties and he received numerous threatening calls and consequent upon this, the petitioner’s group Commandant was pleased to sanction a personal body guard to him. In the year 1992, the petitioner received a letter informing him that a departmental proceeding was proposed to be initiated against him on receipt of anonymous complaint and the petitioner was served with the Article of Charges by letter dated 12.11.1992.
Pursuant to framing of charges, an enquiry committee was constituted which held the enquiry and before the enquiry committee evidence was led to prove the charges. However, the enquiry committee after due deliberation came to a finding exonerating the petitioner of all the charges, inasmuch as all the charges were found to be not established and the enquiry committee gave its clear finding on all the charges exoneration the petitioner. After submission of the enquiry report, a second show cause notice was served on the petitioner on 10.1.1996 calling upon him to file representation as the Disciplinary Authority will take suitable decision after considering the report. The petitioner was thereafter surprised to receive the letter dated 5.9.1996 from the respondents stating therein, inter alia, that the Disciplinary Authority was proposing to disagree with the enquiry committee and the petitioner was directed to file representation against the proposal to disagree with the enquiry report. A copy of the said notice dated 5.9.1996 has been annexed as Annexure 8 to this writ petition. Meanwhile, by the impugned that his case was reviewed and the respondents have taken a decision to prematurely retire the petitioner from his service. A copy of the impugned letter is Annexure 10 to this writ petition.
3. The respondents have taken the following stand in the counter affidavit while justifying the order of pre-mature retirement of the petitioner from his service:
(i) The petitioner was chargesheeted under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred to as ‘ the Rules ‘ for short) for 3 different charges which were prima-facie found proved in the preliminary enquiry. Although in the enquiry the charges were not proved, but the Disciplinary Authority intended to disagree with the findings of the enquiry authority. Consequently the petitioner submitted his reply against the disagreement note which is still under consideration of competent authority and final decision is yet is be taken.
(ii) During course of pendency of the departmental proceeding the petitioner was considered for premature retirement under fundamental Rules 56(j). His case was reviewed by the Reviewing Committee, which recommended his premature retirement and the said recommendation was accepted by the competent authority. The proceeding under FR-569(j) had no link/bearing with the departmental enquiry proceeding under Rule 14 of the said Rules. Both proceedings were quite different.
(iii) Under Rule FR-56(j) the competent authority considered the case of the petitioner by taking into account the entire service record and the Committee observed that in his entire career he was unable to obtain a single more than “Good” entry in the service record and he was found below average. There are also four adverse entries and earlier on one occasion he has been censured while on one occasion penalty of reduction of rank was imposed on him.
(iv) As per the ACR of the petitioner, there are adverse remarks in the year 1972, 73, 74, 75, 77 and 85, which have also been taken into consideration by the Reviewing Committee while passing the impugned order of retirement prematurely. The proceeding of the Reviewing Committee has been annexed as Annexure-A.
4. Mr. A.K. Sinha, learned Sr. Counsel appearing for the petitioner, assailed the impugned order passed by the respondent as illegal, wholly arbitrary and against all canons of justice. According to him the impugned order of premature retirement of the petitioner is mala fide, inasmuch as it is based on extraneous and irrelevant consideration and there is absence of any public interest. Learned Counsel then submitted that un-disputedly the petitioner was promoted in the year 1991 because of his good performance in past and even if there be any adverse remark/entry in the service record for the period prior to 1991, that cannot be a ground for taking a decision for pre-mature retirement. Learned Counsel heavily put reliance on the decisions in the cases of Baldev Raj Chadha v. Union of India and Ors. , Baidynath Mahapatra v. State of Orissa and J.D. Shhvastava v. State of M.P. and Ors. 1984 (1) SLR 364.
On the other hand, Mr. A.K. Trivedi, learned Standing Counsel Central Government appearing for the respondents, supported the impugned order by making submissions of those facts and law which have been stated in the counter affidavit.
5. After having gone through the facts of the case and after hearing the learned Counsel for the parties, the only question which emerges for consideration is as to whether the order of pre-mature retirement is mala fide and in the nature of punishment or it is in accordance with law.
6. It is well settled that the order of pre-mature retirement must be based on relevant materials and requisite evidence, i.e., the retirement of the employee must be in public interest and not in personal, political or other interest. It is equally well settled that the power of compulsory retirement is wide, but necked and arbitrary exercise of power is bad in law. While deciding the question involved in the instant case I must keep in mind the principles laid down by the Apex Court in the case of Baldev Raj Chadha (Supra), relevant portion of which is quoted herein below:
This takes us to 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 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 superannuate?’ These considerations become a the more important in departments where functional independence, fearless scrutiny, an freedom to expose evil or error in high places is the task. And the Ombudsmanic taks 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 over awing is very much in public interest. So it is that we must emphatically state that under the guise of ‘public interest’ if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalize 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 bonafide and promote public interest. There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is at 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 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.
7. Now, I will consider the materials brought on record to come to the conclusion that in fact the order of pre-mature retirement of the petitioner is in the public interest and not mala fide. Admittedly, before the order of premature retirement the petitioner was subjected to the departmental proceeding by levelling the three charges. The first charge was that during August/September ’91’ the petitioner while functioning as Officer-in-charge. CISF Unit, BIOP Dep. 5, Bacheli, acquired teak wood illegally from the local forest contractors and from the Adivashis and misused the man power and Government vehicle for bringing the said teak wood for his own purpose. Further, he did not make payment to the carpenters and managed fictitious cash memoes for Rs. 1600/- from M/s. J.L. Patel Furniture Mart towards fabricating four numbers of wooden doors and sent these items to his native place at Bokaro. The second charge was that while functioning as Officer-in-charge, the petitioner purchased a colour T.V. for Rs. 12,800/- on 12.6.1991 on the security of D.S. Mount, a contractor of Palamu and Inspector-Manjit Singh of the Unit. He failed to make payment of the instalments regularly to the shop keeper. He also failed to submit information to the prescribed authority for the purchase of the T.V. He also took a loan of Rs. 5000/- from Zonal Welfare Fund on the ground of his son’s marriage and this amount was utilised for the purchase of T.V. The third and the. last charge was that while acting as such, he took 50 kgs. of sugar from the Unit Mess on 11.5.1991 through Mess Secretary (Inspector), Manjit Singh Subsequently, on the direction of Sri Ram, the entries in the record were cancelled and fresh entries were made in the mess record showing sale of 50 kgs. Sugar on 11.5.1991 to the Unit Personnel. The sugar taken un-authorisedly from the Unit Mess was sent to his native place. The enquiry committee after taking evidence of the parties came to the finding that the charges have not been established. From perusal of the enquiry report, a copy of which has been annexed as Annexure-6 to the writ petition, it is evident that the enquiry officer has analysed the evidence adduced by the prosecution and after recording the detail reasonings has come to a finding that the charges have been established. However, the Disciplinary Authority decided to differ with the enquiry officer and, therefore, a notice to show cause was issued to the petitioner. However, no final order has been passed in the departmental proceeding as admitted by the respondents and the same is pending. In the meantime, the case of the petitioner was reviewed by the reviewing committee. A copy of the proceeding of the reviewing committee has been filed by the respondents as Annexure-A to the counter affidavit. From perusal of Annexure-A to the counter affidavit it appears that the reviewing committee in its meeting held on 19.4.1996 took up the case of the petitioner. According to the reviewing committee the entire service record of the petitioner as recorded in his ACR/Dossiar was considered and the committee observed that in his entire career he was unable to obtain even a single more that “Good”. The case of the petitioners, therefore, was submitted to the Home Ministry for approval and acceptance of the recommendation of the reviewing committee for his pre-mature retirement under the provision of FR-56 (j). A copy of the recommendation of the Ministry of Homes has been annexed as Annexure-D to the counter affidavit. From perusal of the same, it appears that the recommendation was approved on the aforesaid ground and also on the ground that there are four Adverse entries in the service record of the petitioner and he was awarded censure in one occasion and a penalty of reduction of rank in another occasion. The respondents have also annexed copies of the communication of the adverse remarks to the petitioner as Annexure-C series. It appears from Annexure-C series that some adverse remarks entered in the A.C.R. of the petitioner for the years 1972, 1978 and 1985 were communicated to the petitioner, although in the counter affidavit it is stated that adverse remarks were entered in the A.C.R. for the years 1972, 1973, 1976 and 1985.
8. Mr. A.K. Sinha put heavy reliance on the decisions of the Apex Court in Baldev Raj Chaddha’s case (supra) and in the case of Baidyanath Mahapatra (supra). In Chaddha’s case it has been held by the Supreme Court that 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 a public servant.
In Mahapatra’s case (supra) the Apex Court took the view that if any Government servant promoted to higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and those remain on record as part of past history and in such circumstances it would be unjust to curtial the service career of the Government servant on the basis of those entries in absence of any significant fall in his performance after his promotion. The Apex Court held as under:
No exception can be taken to the Government’s opinion in retiring the appellant prematurely on the basis of the aforesaid recommendation of the Review Committee as it clearly indicated that the appellant’s retention in service was not in public interest. The purpose of the rule conferring power on the Government to retire Government servants prematurely is to energise its machinery by ‘chopping of the dead-hood’ as held by this Court in Union of India v. I.N. Sinha . The question which falls for consideration is whether the Review Committee was justified in making its recommendations on the basis of adverse entries awarded to the appellant in remote past especially when the appellant had been promoted to the post of Superintendent Engineer in 1976 and he had further been permitted to cross Efficiency Bar in 1979. The adverse entries relating to the year 1969-70, 1970-71, 1972-73 and 1975-76, had lost all significance, because inspite of those entries the appellant was considered to be an intelligent and efficient officer and in that view he was promoted to the post of Superintending Engineer. If those entries did not reflect deficiency in appellant’s work and conduct for the purpose of promotion, it is difficult to comprehends to how those adverse entries could be pressed into service for retiring him prematurely. When a Government servant is promoted to a higher post on the basis of merit and selection, adverse entries if any contained in his service record lost their significance and those remain on record as part of past history. It would be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion.
9. The decision of the Apex Court in Mahapatra’s case (supra) and other earlier decisions have been reconsidered by the Apex Court in the case of Baikuntha Nath Das and Anr. v. Chief District Medical Officer Baripada and Anr. . After considering its earlier decisions, the Apex Court laid down the following proposition of law:
The following principles emerge from the above discussions:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour,
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short; if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. It a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority,
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above.
10. Coming back to the facts of the instant case it is not disputed by the respondents that in the year 1991 the petitioner was promoted to the higher post and no neither material has been brought nor any averment has been made by the respondents that after his promotion in the year 1991, performance of the petitioner was not satisfactory. It is not the case of the respondents that there has been any adverse entry in the service record or poor performance of the petitioner after 1985 when the last adverse entry was recorded in the service book of the petitioner. No explanation has been given with regard to the performance of the petitioner for the last ten years of his service i.e. from 1986 to 1996.
11. As noticed above, it is the specific case of the respondents that the reviewing committee considered the entire service record and on the basis of the adverse remarks recorded in the ACR in the year 1972-73, 1975 and 1985, recommended his case for premature retirement.
Mr. Trivedi is unable to satisfy me by showing any adverse entry or poor performance of the petitioner in discharge of his duty during the last ten years of his service, i.e., from 1986-96. In this regard it would be useful to look into the Fundamental Rules, particularly Rule 56(j) thereof, which runs as under:
F.R. 56.
(j) Notwithstanding anything contained in this Rule, the appropriate authority shall, if it is of the opinion that it is the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months’ pay and allowance is in lieu of such notice;
(i) If he is, in Group ‘A’ or Group ‘B’ service or post in a substantive, quasi-permanent or temporary capacity and had entered Government, service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) in any other case after he has attained the age of fifty-five years;
Provided that nothing in this clause shall apply to a Government servant referred to in Clause (e), who entered Government service on or before the 23rd July, 1966.
12. The Government has laid down the procedures and guide lines for reviewing the case of Government employees for pre-mature retirement as provided under FR 56(j) of the said Rules. The said guidelines and procedures are quoted hereinbelow:
3. The criteria to be followed by the Committee in making their recommendations would be as follows:
(a) Government employees whose integrity is doubtful, will be retired.
(b) Government employees who are founded to be ineffective will also be retired. The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he is holding.
(c) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceeding 5 years or where he has been promoted to a higher post during that 5 years period, his service in the highest post, has been found satisfactory.
(d) No employee should ordinarily be retired on ground of ineffectiveness, if in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case.
From perusal of the aforesaid rules and procedures it is evident that the reviewing committee may consider the entire record of service before taking the decision in the matter, but more importance should be given in respect of the performance of the employee during the later part of his service, in my opinion, therefore, performance of the concerned employee during the last b years of his service should be the guiding factor for deciding the case for premature retirement.
13. As stated above, in the instant case admittedly the petitioner was promoted in the year 1991 on account of his good performance in service. There is no adverse entry in the ACR of the petitioner during the last ten years of service, i.e. from 1986-1996; much less for the last 5 years of his service, i.e. from 1991 to 1996. From perusal of the recommendation of the reviewing committee it appears that the committee observed that in his entire career the petitioner was unable to obtain even a single more than one ‘Good’ entry in his service. This means that the petitioner obtained ‘Good’ entry in his service, but he could not obtain more than one ‘Good’ entry. That cannot be a ground for taking a decision that continuance of the petitioner in his service would be against the public interest.
14. In a recent case of Narasingh Patnaik v. State of Orissa , the Apex Court held that the order of compulsory retirement passed on the recommendation of the reviewing committee, which had taken into consideration two adverse entries and pendency of certain departmental proceedings and that too the adverse entries followed by promotion of the employee cannot be held to be in the public interest. In that case, the order of compulsory retirement was passed in the year 1986 on the basis of the recommendation made by the reviewing committee, which reviewed the service recorded of the employees who had completed 50 years of age taking into consideration that there were adverse entries in the ACR of the year 1975-76 and 1977-78 a vigilence case and departmental proceeding were pending and charges have been framed. The Apex Court found that although there were two adverse entries in the year 1975-76 and 1977-78, but in the year 1984 the employee was promoted in the higher post and the performance of the appellant was appraised as ‘good’ and in that view of the matter, the order of compulsory retirement was held to be bad in law. The Apex Court held as under:
In the instant case, after the remarks were made in the confidential reports for the years 1975-76 and 1977-78 the appellant had been promoted on the post of Superintending Engineer in the year 1978 and thereafter Executive Engineer in 1984. It has been pointed out that in respect of years prior to 1975-76, in the year 1976-77 and in the years subsequent to 1977-78 the performance of the appellant was appraised as ‘good’. In these circumstances, we are of the view that the adverse remarks in the annual confidential reports for the years 1975 76 and 1977-78 referred to above, by themselves, cannot sustain the opinion learning to the compulsory retirement of the appellant on the basis that further retention of the appellant in service was not in public interest. We are, therefore, unable to uphold the order of compulsory retirement dated 5.3.1986 and the same has to be set aside.
15. Having regard to the facts and circumstances of the case and the discussion:, made hereinabove, I am of the definite view that there are absence of sufficient materials which satisfy that the continuance of the petitioner in service is against the public interest. I further hold that the decision of the reviewing committee for pre-mature retirement of the petitioner in the basis of the adverse entries during the period prior to his promotion in the year 1991 is wholly illegal and arbitrary and cannot be sustained in law.
16. In the result, this writ petition is allowed and the impugned order of premature retirement of the petitioner is quashed. The petitioner shall be deemed to be in service and he shall be entitled to all consequential benefits.