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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