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PETITIONER: I.K. MISHRA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       11/07/1997

BENCH: SUJATA V. MANOHAR, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T V.N. KHARE, J.      The appellant  before us, started his service career as a Sub-Auditor  in the  erstwhile Holkar  Estate, Indore with effect   from    5th   February,   1943.   Subsequently   on reorganisation of  states in  the year  1956  the  appellant continued to  serve in  the office  of  Accountant  General, Madhya Pradesh,  Gwalior. The  appellant  while  working  as Auditor was  accorded selection grade. However, subsequently the appellant  was  compulsorily  retired  from  service  by notice dated 23rd of August, 1974 issued under Rule 48(b) of C.C.S. Pension  Rules, 1972  hereinafter referred  to as the Rules.      The   appellant    challenged   the   impugned   notice compulsorily retiring  him from  service by  filing a  Civil Suit in  the Court  of Sub-Judge,  Gwalior for a declaration that the  order compulsorily  retiring him  from service  is illegal and  inoperative, being arbitrary and mala fide. The Trial Court  decreed the  suit and  the aforesaid decree was affirmed by  the first Lower Appellate Court. The High Court in  the   Second  Appeal   filed  at  the  instance  of  the respondents set  aside the decree and Judgments of the Trial Court and  the First  Appellate Court holding that the order compulsorily retiring  the appellant  from service  did  not suffer from  infirmity either on account of arbitrariness or mala fid es. That is how the plaintiff appellant has come up in appeal before us.      Counsel  for  the  appellant  reiterated  the  argument advanced before  the Court  below characterising  the  order compulsorily  retiring   the  appellant   from  service   as arbitrary and  mala fide.  It was  urged  that  the  service record of  the appellant  being  unblemished,  the  impugned order compulsorily  retiring the  appellant deserves  to  be held as  arbitrary. The  law in  regard  to  the  compulsory retirement of  the  government  servants  in  terms  of  the service rule is almost settled by now by number of decisions of this Court. Repeatedly it has been held that the power to retire compulsorily a government servant in  terms of  the service rules is absolute provided the concerned  authority forms  an opinion bona fide that it

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is necessary  to pass  order of compulsory retirement in the public interest. This Court in the case of Baikuntha Das and another v.  Chief District  Medical  Officer,  Baripada  and another [1992  (2) S.C.C.  299] after considering the number of decisions  of  the  apex  Court  referred  the  following principles for  testing the  validity of order of compulsory retirement.      "34.   The   following   principles      emerge from the above discussion:      (i)   In    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.   If   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      uncommunicated 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   aspect   has   been

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    discussed in paras 30 to 32 above."      Applying principles  No.3 and 4 to the present case, it is  worthwhile   to  refer  to  the  entries  pertaining  to appellant in  his Annual  Confidential Report. In the annual confidential report  for the  year 1960-61 the appellant has been  described   as  an  average  worker  and  his  further promotion was  deferred. In  the year  1961-62 the appellant was again  graded as  poor.  About  trustworthiness  it  was remarked that  his work requires supervision as his accuracy is limited.  Against column  "  business  habits  "  it  was remarked  that   appellant’s  method   of  working   is  not systematic. During  the period  1.4.64 to  26th of December, 1964 against  the column "fitness and further advancement of appellant ",  it was  remarked -  "question does not arise". During the  period 1965-66 and 1966-67 as well the appellant was described  as an  average worker. By letter dated 8th of September,  1972   the  Senior  Deputy  Accountant  General, Administration observed  that the  appellant  has  not  been reported good  and was  required to  show improvement in his work before  he may  be allowed to cross the efficiency bar. for the  period beginning  from 13.6.1971  to 30.11.1971 the Reviewing Officer  observed in the report that the appellant is not fit for further advancement and is an average worker.      Besides that  by an  order  dated  4th  February,  1970 passed  by   the  Accountant   General,  the  appellant  was subjected to the minor penalty of withholding next increment for the  period of  two  years  with  cumulative  effect  of postponing  future  increments  which  was  reduced  by  the Appellate Authority  to withholding  of increments  "for two years without  cumulative effect".  By letter  dated 20th of November,  1973   passed  by  the  Accountant  General,  the appellant was  further subjected to the penalty of reduction to the lower stage of Rs.550/- for a period of two years and further the appellant was denied benefit of increment during the period of subsistence of the penalty.      The adverse  remarks in  the annual confidential report and the  minor punishment  inflicted upon  the appellant  as referred herein  before clearly  demolishes  the  contention that appellant’s  service record  was unblemished. It is not disputed that  the entire service record including (good and bad) entries  of the appellant were placed before the Review Committee and  the Review  Committee after  considering  the aforesaid reports  mainly confidential report/character roll both  favourable  and  adverse  recommended  the  appointing authority for  compulsory retirement  of the  appellant from service. The  adverse materials  placed  before  the  Review Committee and the appointing authority show that the order compulsorily retiring  the appellant  from service was based on material  on record  and at  no stretch of imagination it can be branded as arbitrary.      It was  then contended that the appellant having passed the S.A.S  Part II  Civil Examination  in the  year  1972-73 after complying  with the  eligibility criteria laid down in the Regulations  199 and  207, the  adverse entries  in  the character roll  of the  appellant lost  their sting  and for that reason  there was  no material  on record  on basis  of which the  appointing authority  could form  an  opinion  to compulsorily retire the appellant from service. No doubt the appellant was  sent by  the respondents  to appear in S.A.S. examination in the year 1972-73 after having been found that the appellant  complied with the conditions for appearing in the said  examination and  further the  appellant passed the S.A.S. Part  II examination  but merely  the facts  that the appellant was  sent to  appear in  the examination  and  was declared successful  in the said examination are not the end

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of the  matter. In  fact passing  of the  S.A.S. examination entitles an  auditor to  be considered  for promotion to the higher post  by the Departmental Promotion Committee. In the present case  after the appellant was declared successful in the S.A.S. examination, the Departmental Promotion Committee after considering  the service  record of  the appellant did not recommend  his case  for further promotion. Applying the principle No.4  as noted  in the  case of Baikuntha Nath Das (Supra) the appellant having not been promoted to the higher post the  adverse remarks  in his  character  roll  remained intact. Since  the appellant  was not promoted to the higher post by  the Departmental  Promotion  Committee  it  is  not correct to  contend that the adverse materials in the annual confidential report  of the  appellant lost  their sting and those  materials   could  not   form  the   basis  of  order compulsorily retiring the appellant from service.      Lastly  it   was  urged  that  the  order  compulsorily retiring the appellant was a mala fide order as the same was passed at  the instance  of Shri Manazure Muastafa Siddiqui, Accountant  General,  M.P.,  who  bore  grudge  against  the appellant. This argument is being noted only to be rejected. It may  be noticed  that the  record before us does not show that Shri  Manazure Muastafa Siddiqui was party to the suit. In fact  he was  not impleaded by name in the suit. Further, the allegations against Shri Siddiqui were totally vague. No inference of mala fide could be drawn from such allegations. In the  absence of  full facts and particulars in the plaint in respect of allegation of malafides the order compulsorily retiring the appellant cannot be held to be mala fide order.      For the  aforesaid reasons  the instant  appeal has  no merit and  is accordingly dismissed. There shall be no order as to costs.