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PETITIONER: JAYANTI KUMAR SINHA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT16/09/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH VENKATACHALLIAH, M.N. (J)

CITATION:  1989 AIR   72            1988 SCR  Supl. (3)   5  1989 SCC  Supl.  (1)   1 JT 1988 (4)    77  1988 SCALE  (2)800

ACT:     Civil Services:  Civil  Services  Regulation:   Article 456(h)-Compulsory  retirement-Scientist working  in  Defence Research  Laboratory-Post in which appellant  was  working-- Responsible  one  Poor  performance  cannot  be   tolerated- Retirement order held valid.

HEADNOTE:     The  appellant  who  was  a  scientist  in  the  Defence Electronics  Research  Laboratory was  compulsorily  retired from  services  by an order dated November  28,  1988  under Article  459(h)  of  the  Civil  Services  Regulations.   He challenged   the   retirement  order  before   the   Central Administrative Tribunal. It was contended on his behalf that he  had  a brilliant academic career and a clean  record  of service  and that he had actually been interviewed  for  the post of Director during May-June, 1986, and that on  account of  the representation made by him in February, 1986 to  the authorities for redressal of personal grievances wherein  he had suggested improvements in the laboratory and pointed out the   defective   functioning  of   the   Institution,   the authorities  developed  bias against him. On behalf  of  the Department, these allegations were countered and the service records of the appellant were produced before the  Tribunal. The Tribunal rejected the allegations of bias, mala fide and the appellants’ claim that the order of retirement was based upon extraneous consideration, and dismissed the appeal.     In  the appeal to this Court it was contended on  behalf of  the  appellant, that the appellant had a  clean  service record  and  there  was,  therefore,  no  justification   to prematurely  retire him, and that it has to be assumed  that the  appellants’s record of service was clean as he was  not communicated  any adverse entry in his character  roll.  The Department  made available for inspection at the hearing  of the  appeal, the service records from 1973 till  retirement, in  support of its stand that the guidelines prescribed  for review for deciding whether an officer should be prematurely retired had been strictly followed, and that the decision to retire the appellant was taken in a bona fide and legitimate manner and without any bias or prejudice and that there were several entries by the authorities in the character roll  to

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indicate  deficiencies  and  drawbacks  in  the  appellant’s functioning.                                                     PG NO 6     Dismissing the appeal,     HELD: 1. The post in which the appellant was working was a  responsible  one  and  poor  performance  could  not   be tolerated. [IID]     2.  The  appellant  had served  under  four  controlling authorities   and   three  of  them   were   Scientists   of international repute. These Scientists appear to have made a fair assessment of the appellant’s work and what is material is  that there is unanimity in their conclusion. Years  back one  of  the entries had indicated that  the  appellant  had become ‘dead wood’, and he was also communicated the general disapproval of his method of working. [11A-B, 11D]     3.  It  cannot be contended in the  instant  case,  that there  was no communication of adverse entries  because  the entries  were  mostly based upon general assessment  of  the performance. Ordinarily when the entries relate to  specific instance  leading  to  adverse  entries,  the  communication thereof  is  sent to the officer concerned with  a  view  to providing  an  opportunity for improvement  of  performance. [11C-D]     4.  The review proceedings were in consonance  with  the guidelines framed by the Government. From the proceedings of the Review Committee it is found that the Committee took  up the  review  of 19 officers and found  the  appellant  alone liable  for retirement. Even at Government level  after  the recommendation of the review committee, the report was  duly scrutinised. [11D, 11F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  658  of 1988     From  the  Judgment  and Order dated  18.2.1987  of  the Central  Administrative Tribunal Hyderabad in OA No. 522  of 1986.     P.P. Rao and A. Subba Rao for the Appellant.     D.N. Dwivedi, Ashok K. Srivastava and C.V.S. Rao for the Respondents.     The Judgment of the Court was delivered by     RANGANATH MISRA, J. This appeal by special leave and  is directed against the decision of the Central  Administrative Tribunal,  Hyderabad  bench,  dismissing the  claim  of  the appellant  and  rejecting his challenge to the  order  dated                                                     PG NO 7 28th of November, 1986, retiring the appellant from  service under Article 459(h) of the Civil Services Regulations.     The order of the retirement impugned in the  proceedings was to the following effect:     "WHEREAS  the President is of the opinion that it is  in the public interest to do so.     Now,  THEREFORE, in exercise of the powers conferred  by Clause  (h) of Article 459, of Civil  Services  Regulations, the President hereby retires Dr. J.K. Sinha, Scientist  ‘E’, DLRL,  Hyderabad  with immediate effect, he  having  already attained  the  age  of 50 years on  27th  March,  1981.  The President  also directs that Dr. J.K. Sinha shall be paid  a sum equivalent to the amount of his pay plus allowances  for a period of 3 months calculated at the same rate at which he was drawing them immediately before his retirement".     The appellant was born on 27th March, 1931, and took the Master’s  Degree in Science in Physics in 1953 and  obtained

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Ph.D. in microwave Physics from the University of London  in 1959.  He  also  became  a senior  member  of  Institute  of Electrical  and Electronics Engineers, USA and a  member  of the  Institute of Electrical Engineers, London. He  acquired professional  training in the Institute of  Semi  Conductor, Leningrad  USSR, Leveder Institute of Physics,  Moscow,  and Rice  University,  Texas,  USA.  In  August  1960,  he   was appointed  as  Senior  Scientific Officer,  Grade-I  in  the Defence  Science Laboratory, Delhi and in 1969 was  promoted as  Principal  Scientific Officer. In August, 1973,  he  was further  promoted  as Deputy Chief  Scientific  Officer  and posted   in   Defence   Electronics   Research   Laboratory, Hyderabad. While serving in the said post he was prematurely retired by the impugned order.     Before the Tribunal the appellant contended that he  had a  brilliant  academic  career and had  a  clean  record  of service;  his research projects had been highly praised  and appreciated  and  he  deserved  promotion  to  the  post  of Director  (Scientist  ‘G’/‘F’). The appellant  was  actually interviewed  for the said post during May and June 1986.  In February,  1986,  he  had  made  a  representation  to   the authorities  for redressal of personal grievances and  while                                                     PG NO 8 suggesting for improvement in the laboratory he had  pointed out regarding the defective functioning of the  Institution. The  authorities developed bias against the appellant.  This led to his not getting selected for the post of Director and ultimately  to  the  making of  the  impugned  order.  These allegations  were  countered by the Department.  Before  the Tribunal the service records of the appellant were produced. The Tribunal rejected the allegations of bias and mala  fide and  the appellant’s claim that the order of retirement  was based  upon  extraneous  consideration  and  dismissed   the appeal.     The  very contentions have been reiterated before us  by Mr.  Rao  appearing for the appellant. The  Department  made available for inspection at the hearing the service  records from  1973 till his retirement in support of its stand  that the guidelines prescribed for review for deciding whether an officer  should  be prematurely retired  had  been  strictly followed and the decision to retire the appellant was  taken in a bona fide and legitimate manner and without any bias or prejudice.     Mr. Rao mainly emphasised that the appellant had a clean service record and, therefore, there was no justification to prematurely  retire him. This submission is based  upon  the assumption  that the appellant’s record of service is  clean as  he  has not been communicated any adverse entry  in  his character  roll. Mr. Dwivedi for the respondent refuted  the assumption by stating that there were several entries by the authorities  to indicate deficiencies and draw-backs in  the appellant’s  functioning and to support this  submission  he relied  upon the service records. According to  Mr.  Dwivedi the  entries  are  such  that there  was  no  obligation  to communicate the same under the prescribed guidelines. We may refer to some of the entries now: ------------------------------------------------------------     Year                           Remarks ------------------------------------------------------------ 1975     "I  have not been too impressed with  this  officer          who does not seem to fit into DLRL and its work.  l          agree  with  Director DLRL and  CCR&D(E)  in  their          grading/remarks" . 1976     "I  have  not been impressed with this  Officer.  I          doubt if he fits in well with the work at DLRL.  We

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        will  have to see how to redeploy him. This is  not          easy in a post oriented budget system."                                                   PG NO  9 1977     "I    am    in    full    agreement    with    Shri          .................in     his     comments/assessment          concerning  this officer also with the  grading  of          Reviewing  Officer. He would be best suited  for  a          preliminary  Physics  based  and  largely  teaching          oriented job. His promotion to DCSO and posting  to          DLRL  was a direct result of the irrelevant  system          of   Subject  Pyramids,  Vacancy  based   promotion          defined  by  pure consideration of ACRs.  Thus  one          gets square pegs in round holes. It is this  system          which has been changed recently after great effort.          The position as earlier operated was unfair in  the          long  term for the officers also, as in this  case.          In  principle Dr. Sinha would be a good man in  the          right place." 1979     "An officer who thinks very much of himself but one          who   cannot   claim   to   have   done   something          substantial. I have suggested that he shifts to IAT          but he has refused". 1980     "From what I know of him, he merely talks but  does          nothing  very  much.  He refused to  teach  at  IAT          though qualified on papers. He is one of those whom          we have to keep on as dead wood". 1981     "I agree. I have no high opinion of his work or  as          a man. The DRDO derives no benefit from him but our          rules  are  such  that we have to  live  with  such          people". 1982     "He is an average officer". 1983     "Performance is average and fair". 1984     "I  am  totally disappointed with the  officer.  My          predecessors  have  also had the  same  feeling.  I          tried  to  see whether he could be  fit  into  MTRC          Bangalore.  Even for this he has to appear  for  an          interview.  His performance as far as I can see  is          mediocre and I accept...’s observation.          He  had stated "he is in my opinion at  the  lowest          limit  of  technical  performance  and   managerial          performance in DCRL Scientist ‘E’."                                                     PG NO 10 By  the  time the review was undertaken the report  for  the year  1985 was not ready mainly on account of the  appellant not furnishing his self-assessment but the report which came latter indicated that he was graded as poor for that year.     From the records we find that on June 9, 1980, the  head of  the  establishment had written to the appellant  to  the following effect:     "Reference  your  letter  of 27th May,  1980.  You  will recall some time ago you sent me several communications  and also saw me in person about your future interests I  thought I  had  been  able to give you a chance to  expand  on  your interest, but you have turned it down. It is, therefore, not clear what exactly you want. If you want to take a  dominant role  in  the  microwave development and  research  and  its related activities, this cannot be done purely on a personal basis;  it should be a part of the overall programme of  the Organisation. I am, therefore, requesting Shri Narayana  Rao to  use  you in whatever way he deems fit until  a  suitable post is found for you."     On 17th April, 1986, the Director of Defence Electronics Research Laboratory, Hyderabad, had written a letter to  the Director  of  Personnel,  R & D  Organisation,  Ministry  of Defence, New Delhi, about the appellant, a copy of which  is

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on record. The letter makes grievance that the appellant  is non-cooperative  in  the matter of submission of  his  self- assessment for the year 1985. It further stated:     "I do not recommend him for promotion, due to the  above mentioned remedial defects about which he has been told many time by me.     For  many  years  he has not been putting  in  even  the minimum  amount of effort which is expected of a  person  of his  level.  With Government now extending the  services  of Scientists/Engineers upto 60 years, I feel that in the  best interests of the Government, a careful study has to be  made whether  people of his calibre and capabilities are  allowed to be continued in Government service.     I  regard his overall performance is poor and  he  comes against the lowest 5% of the Sc.E in the laboratory".                                                     PG NO 11     The   appellant  has  served  under   four   controlling authorities   and   three   of  them   are   Scientists   of international repute. These Scientists appear to have made a fair assessment of the appellant’s work and what is material is  that there is unanimity in their conclusion. Years  back one  of  the entries had indicated that  the  appellant  had become "dead wood".     The  Tribunal rightly rejected the plea of  mala  fides. Quite   appropriately,  Mr.  Rao  did  not  reiterate   that contention.  There  could be no reason why everyone  in  the Institution should turn hostile to the appellant.     Mr. Rao had contended that there was no communication of adverse  entries.  Ordinarily  when the  entries  relate  to specific   instances   leading  to  adverse   entries,   the communication thereof is sent to the officer concerned  with a  view  to  providing an  opportunity  for  improvement  of performance.  The entries which we have extracted above  are mostly based upon general assessment of the performance.  As we have already pointed out, he was communicated years  back the  general  disapproval of his method of working.  We  are satisfied  that  the review proceedings were  in  consonance with  the guidelines framed by the Government. The  post  in which  the appellant was working was a responsible  one  and poor  performance  could not be tolerated. In Shyam  Lal  v. State  of  U.P.  &  Union  of India,  [1955]  1  SCR  26,  a Constitution Bench had indicated that compulsory  retirement did not involve any stigma or implication of misbehaviour or incapacity.  Ever since then by a catena of  decisions,  the power of compulsory retirement and the procedure  prescribed for taking of such action have been approved by this  Court. It is unnecessary to refer to those cases.     From  the proceedings of the Review Committee,  we  find that  the  Committee took up the review of 19  officers  and found the appellant alone liable for retirement. The  record of the proceedings shows that even at Government level after the recommendation of review committee, the report was  duly scrutinised.     In  our  opinion,  the  Tribunal  rightly  came  to  the conclusion  that the order of compulsory retirement was  not open to challenge. The appeal is accordingly dismissed.     There would be no order for costs.                                            Appeal dismissed.