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PETITIONER: C.D. AILAWADI

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT01/03/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1990 AIR 1004            1990 SCR  (1) 783  1990 SCC  (2) 328        JT 1990 (2)   618  1990 SCALE  (1)340

ACT:     Civil  Services--Fundamental  Rules:  Fundamental  Rules 56(j)(i)  --Compulsory retirement--Object of  rule---Assail- ment  of  order-Grounds  for--Order  retiring  appellant  in public interest--Validity of.

HEADNOTE:     In  a Writ Petition flied before this Court,  the  peti- tioner assailed the order of his compulsory retirement  from service  made under rule 56(j)(i) of the Fundamental  Rules. The  petitioner contended that he was efficient,  had  clear and  unblemished  record of service and his  character  roll entries  were excellent, and since no review has  been  made six  months  before he attained the age of 50  or  completed thirty years of service nor he had been retired on the basis of  review,  he  was entitled to continue  upto  the  normal retirement age of 58.     On behalf of the respondents, it was contended that  the order of retirement was made in public interest after review and  that the Committee had concluded after  reviewing  com- plete record of service and considering the quality of  work on the whole, that the petitioner was not fit to be retained in public interest. Dismissing the Writ Petition, this Court,     HELD:  1.1 Compulsory retirement under rule 56(j)(i)  is not  a punishment as it does not take away any of  the  past benefits. Chopping off the dead wood is one of the important considerations for invoking rule 56(j)(i) of the Fundamental Rules. [786G]     1.2 An aggrieved civil servant can challenge an order of compulsory  retirement on the ground (i) that the  requisite opinion  has not been formed; or (ii) that the  decision  is based  on collateral grounds; or (iii) that it is  an  arbi- trary  decision. If the civil servant is able  to  establish that  the order suffered from any of these infirmities,  the Court has jurisdiction to quash the same. [786F-G]     Union  of India v. Col. J.N. Sinha & Anr., [1971] 1  SCR 791, referred to. 784     In the instant case, on the basis of the service record,

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the  Committee formed the requisite opinion that  the  peti- tioner  had  ceased to be useful and, therefore,  should  be retired  prematurely.  The  petitioner has  not  placed  any satisfactory  material to prove that the decision was  based on  collateral grounds. Once the opinion is reached  on  the basis of materials on record, the order cannot be treated to be  arbitrary.  The service record of more than  five  years shows that the higher officers under whom the petitioner had worked were different and different sets of reviewing  offi- cers had also made the entries. Therefore, the reports  must be  taken  to have reflected an  appropriate  and  objective assessment  of  the performance of  the  petitioner.  [786H; 787A-B]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 58 of 1983. (Under Article 32 of the Constitution of India) R.K. Garg and D.K. Garg for the Petitioner. V.C. Mahajan and L.K. Gupta for the Respondents.     RANGANATH MISRA, J. In this application under Art. 32 of the  Constitution,  petitioner assails the order  dated  5th September,  1975, of his compulsory retirement from  service with  effect  from 5th of December, 1975,  made  under  rule 56(j)(i)  of the Fundamental Rules. The impugned  order  ran thus: "WHEREAS the Director of Audit, Defence Services, New  Delhi (appropriate authority) is of the opinion that it is in  the public interest to do so,           NOW,  THEREFORE,  in exercise of the  powers  con- ferred by clause (j)(i) of rule 56 of the Fundamental Rules, the  Director  of Defence Services  (appropriate  authority) hereby  gives notice to Shri C.D. Ailawadi,  Audit  Officer, Defence Services that he, having already attained the age of 50  years  on  the 22nd November, 1969,  shall  retire  from service  with effect from the forenoon of the 4th of  Decem- ber,  1975, or from the date of expiry of three months  com- puted  from the date of the service of this notice  on  him, whichever is later." The  petitioner  has pleaded that he was efficient  and  had risen 785 from  the  rank of a Clerk to the post of Audit  Officer  in which he was confirmed with effect from 3.12. 1968.  Accord- ing to him, he had clear and unblemished record of  service. He had held independent charge of the senior post of  Deputy Director of Audit and had been paid an additional amount  of Rs.  100 per month for the period. He also alleged that  his character roll entries were excellent. According to him,  it was  the obligation of the appropriate authority  to  review the petitioner’s case six months before he attained the  age of  50 or completed thirty years of service. Since  no  such review  had been made or on the basis of  review  petitioner had  not been retired, he was entitled to continue upto  the age of 58, which is the normal age of retirement.  According to  him, all cases of premature compulsory  retirement  made during  the emergency were reviewed in terms of the  Govern- ment  circular of lOth of August, 1978, but the  representa- tions  made by the petitioner for the benefit of  review  in terms of the said circular were not heeded to and the  peti- tioner was, therefore, obliged to file the present petition.     In the return to the rule nisi by the Director of Audit, Defence  Services, it has been contended that the  order  of retirement  was made in public interest after review of  the

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petitioner’s case. It has been stated in the said affidavit: "In the case of Shri Ailawadi the Committee after review  of his  complete  record of service observed that  his  earlier services  were of a very marginal nature and he earned  some adverse reports later. The Committee, therefore, considering the  quality of his work on the whole, concluded  that  Shri Ailawadi was not fit to be retained in the public  interest. The Appropriate Authority felt that his reports for the last few  years  were poor, colourless and indicative  of  steady deterioration attributed to family problems and to his state of health. The Appropriate Authority also took into  account his latest report for the year 1974-75 which assessed him as ’barely competent to hold an officer’s post’."     The character roll entries have also been placed  before the  Court at the time of heating of this writ petition.  We have checked the same and in particular those for five years prior  to  the date of the impugned order. In  1969-70,  his ability  was considered to be average. His thought  and  ex- pression  were said to be vague and rambling.  Deterioration of  his  physical health was taken note of and  the  general assessment  was that he was an average officer. In the  fol- lowing year the reviewing 786 authority  after treating him to be an average  officer  en- dorsed the following direction: "I am inclined to think that the entire report may be commu- nicated to him and he must be told so to exert himself  that he earns a more commendable report next year. ’ ’ This appears to have been shown to him and his signature had been taken on 3.8.1971.     During  the years 1972-73, 1973-74 and 1974-75,  he  was branded  as  an  average officer. In the last  year  it  was indicated that his intelligence was of low order and  though he  was  physically fit, he was not mentally alert.  It  was also  indicated  that  he was barely competent  to  hold  an officer’s  post. In the report for a part of 1974-75 he  was branded  as poor and against the column of ’general  assess- ment’,  it  was shown that ’he was not sure of  himself.  We have  extracted entries from the character roll to meet  the petitioner’s  contention that he had an excellent record  of service.     Mr. D.K. Garg, appearing for the petitioner has  supple- mented  the arguments by a written note which has also  been looked into.     Petitioner does not challenge the validity of the  rule; nor  does he allege that the order of compulsory  retirement is the outcome of mala fides.     An  aggrieved  civil servant can challenge an  order  of compulsory  retirement  on any of the following  grounds  as settled  by  several decisions of this Court: (i)  that  the requisite  opinion  has not been formed; or  (ii)  that  the decision is based on collateral grounds; or (iii) that it is an arbitrary decision. In Union of India v. Col. J.N.  Sinha &  Anr., [1971] 1 SCR 791 this Court held that if the  civil servant  is able to establish that the order  of  compulsory retirement  suffered from any of the above infirmities,  the Court has jurisdiction to quash the same. It is not disputed that compulsory retirement under rule 56(j) is not a punish- ment  as  it does not take away any of  the  past  benefits. Chopping off the dead wood is one of the important consider- ations for invoking rule 56(j) of the Fundamental Rules.  1n the  instant case, on the basis of the service  record,  the Committee  formed the requisite opinion that the  petitioner had  ceased to be useful and, therefore, should  be  retired prematurely.  We  do not think petitioner has been  able  to

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place 787 any satisfactory material for the contention that the  deci- sion was on collateral grounds. Once the opinion is  reached on  the  basis of materials on record, the order  cannot  be treated  to  be arbitrary. The service record of  more  than five  years  which  we have perused shows  that  the  higher officers under whom the petitioner had worked were different and  different sets of reviewing officers had also made  the entries.  Therefore, the reports must be taken to  have  re- flected  a appropriate and objective assessment of the  per- formance of the petitioner.     The  writ petition must accordingly fail and is,  there- fore, dismissed. There shall be no order as to costs. N.P.V.                                              Petition dismissed. 788