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PETITIONER: N.   V. PUTTABHATTA

       Vs.

RESPONDENT: THE STATE OF MYSORE & ANR.

DATE OF JUDGMENT20/04/1972

BENCH: MITTER, G.K. BENCH: MITTER, G.K. GROVER, A.N.

CITATION:  1972 AIR 2185            1973 SCR  (1) 304  1972 SCC  (3) 739  CITATOR INFO :  OPN        1980 SC 563  (21)  RF         1992 SC1020  (17)

ACT: Mysore  State  Civil Service Rules, r. 285 and  Note  I  and Mysore Civil Services (Confidential Reports) Rules, 1965, r. 3-Compulsory  retirement  based on  confidential  reports-If could be challenged.

HEADNOTE: The  appellant was an officer in the Mysore  State  Service. In  1967,  when  he had passed the age of 50  years  he  was compulsorily retired in terms of r. 285 of the Mysore  Civil Service  Rules read with Note I thereto, as  the  Government was of opinion that it was necessary in the public  interest to retire him.  He challenged the order on the ground, inter alia,  that there was violation of natural justice  in  that the appellant was not informed of the evidence on which  the order  was  based and no opportunity was Riven  to  him  for explaining, away such evidence.  The respondent stated  that the action was taken on a consideration of the  confidential reports  submitted in respect of the appellant and  that  it was not based on any prejudice against him.  The High  Court dismissed the petition. Dismissing the appeal to this Court, HELD  : (1) As the Confidential Reports Rules stood  at  the relevant time, the appellant could not have appealed against the adverse remarks, and if the opinion of the Government to retire him compulsorily was based primarily on the  reports, he could only challenge the order if he was in a position to show  that the remarks were arbitrary or mala fide.  If  the Government bona fide. formed the opinion that it was in  the public  interest  to  retire him, the  correctness  of  that opinion could not be challenged. [310 A-C] (2)  It  is  difficult to see bow the appellant  could  have explained that it was contrary to public interest to  retire him  if  there was no basis for attacking the order  on  the ground that it was made arbitrarily or mala fide. [309, B-C] Shivacharana v. State of Mysore, A.I.R. 1965 S.C. 280; Union of India v. J. N.  Sinha, [1971] 1 S.C.R. 791, followed. Orissa v. Binapani Dei, [1967] 1 S.C.R. 625, explained. A.   K.  Kraipak  v.  Union, [1970] 1  S.C.R.  457  at  469,

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referred to’. (3)  The fact that r. 285 was not so emphatically worded  as F.R. 56 (i)    considered  in  J. N. Sinha’s case  makes  no difference, because, both the rules give the Government  the same or similar right; and so long as the    right  is   not qualified it must be held to be absolute. [311 H;312 A]  (4) If  the  confidential  reports  could  be  acted  upon   his promotion  could  be  withheld even if he was  not  made  to retire  compulsorily.  If on the basis of  the  confidential reports be was asked to retire in compliance with the  rule, the  appellant could not complain of loss of position  which he  might  have attained if there were  no  adverse  remarks against him. [312 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1835 of 1968. 305 Appeal  from the judgment and order dated March  21,1968  of the Mysore High Court in Writ Petition No. 2371 of 1967. Appellant appeared in person. M. Veerappa, for the respondents. The Judgment of the Court was delivered by Mitter, J. The only point involved in this appeal by  certi- ficate, is-whether the order of compulsory retirement  dated June 28, 1967 intimating the appellant that it was necessary in  the  public  interest that he  should  be  retired  from service  with effect from October 15, 1967 in terms of  Rule 285  of  the Mysore Civil Services Rules read  with  Note  I thereto  was inconsistent with the rules of natural  justice in  that the appellant was not informed of the  evidence  on which  the order was based and no opportunity was  given  to him  of  being  heard and meeting  or  explaining  away  the evidence in support of the order, and as such was liable  to be quashed. The High Court rejected the writ petition of the appellant  in  which the above and  other  contentions  were raised  by him but as the certificate is limited to the  one question  mentioned above the other points canvassed  before the High Court do not fall for consideration. The  facts  are as follows.  The petitioner  was  a  Class-I Health Officer in the Department of Public Health in  Mysore State  Service  in  the year 1967. But  for  the  order  of retirement  which was served on him he might have  continued in  service  up  to December 31, 1971  when  he  would  have attained  the  age of 55 years.  In June 1967  when  he  had passed  the age of 50 years he was served with an order  the text of which is as follows :-               "Whereas  the  Government  of  Mysore  is   of               opinion  that  it is necessary in  the  public               interest  that  you, Dr. N. V.  Putta  Bhatta,               Health  Officer  Class I working  as  District               Health  and  Family Planning  Officer,  Coorg,               should  be  retired from service  with  effect               from the 15th October, 1967.               Now, therefore, as required by Note 1 to  Rule               285  of the Mysore Civil Services  Rules,  you               are hereby given three months’ notice that you               shall be retired from service with effect from               the 15th October, 1967." He  filed his writ petition in the High Court of  Mysore  in September  1967.   The averments in the petition  which  are relevant for the purpose of this appeal are as follows (a) Paragraph 5 of the petition

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             "This order which vitally affects my right  to               continue   till   I   attain   the   age    of               superannuation, namely, 55 years               306               with the prospect of ’becoming the Head of the               Department should have been passed only  after               giving me an opportunity to show cause against               it  having  regard  to the  rules  of  natural               justice."               (b) Paragraph 18(a) of the petition               I  was not given any chance or opportunity  to               know  the  causes for the  impugned  order  on               which I am to be retired prematurely.  In  the               absence of any such cause, 1 assumed that some               confidential report or any cause affection  my               health  may  have been  considered.   On  this               assumption I made representation to the  first               respondent  (the State of Mysore) through  the               second  respondent  (the  Director  of  Health               Services)    These representations  will  show               that  I  was  a victim  of  prejudice  of  the               Directorate of Health Services               (c) Paragraph 22 of the petition               "After the impugned order was passed I got two               confidential  reports  One  of  these  reports               stated that I require guidance, that I had not               initiative  and not fit to hold any  executive               post and that I was in the habit of  divulging               Government information without the  permission               of the Government.  The second report of  1966               stated that I was a conceited, incompetent and               irresponsible  officer and that I was slow  in               disposing  of the official matters and that  I               was not amendable to superior officers  These               confidential reports were sent to me on 1-9-67               I  had  to make representation  against  these               false allegations."               (d) Paragraph 23 of the petition               "It  will thus be seen that in the  background               of  the  confidential report for 1966  that  I               must  be  retired  or  retired  from   service               without  any opportunity to me,  the  impugned               order  has  been passed.  The  impugned  order               therefore  is  violative of Art. 31 1  of  the               Constitution since it is clearly based on  the               1966  confidential report I  therefore  submit               that  on  vague  and  unsupported  charges  my               career  is sought to be blocked  which  should               have been otherwise promising." In  the counter affidavit of the State it was  averred  that action was taken by the Government on a consideration of the confidential reports submitted in respect of the  petitioner and  that  it  was not based on any  prejudice  or  jealousy against  him.  No opportunity for hearing  was  contemplated under  Rule 285 and the impugned order was not violative  of Art. 311 of the Constitution. 307 The relevant part of Rule 285 of the Mysore Civil Services Rules and Note 1 thereto read as follows               "A retiring pension is granted to a Government               servant  who  is  permitted  to  retire  after               completing qualifying service for thirty years               or  such  less time as may,  for  any  special               class of Government servants be prescribed.               Note  1. A Government servant may retire  from

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             service  any  time  after  completing   thirty               years’  qualifying  service provided  that  he               shall give in this behalf a notice in  writing               to  the appropriate authority, at least  three               months  before the date on which he wishes  to               retire.  Government may, by order, retire  any               Government  servant  after  he  has  completed               twenty  five  years of qualifying  service  or               after  he has attained fifty years of age,  if               such retirement is in their opinion  necessary               in   the   public  interest,   provided   that               Government  servant concerned is given  notice               of three months before the date of retirement,               or in lieu of such notice, a sum equivalent to               the amount of his salary for a period of three               months. " The validity of the above rule was attacked in this Court in Shivacharana v. State of Mysore (1).  Upholding the validity thereof it was said by this Court (at p. 281 paragraph 4):               "It would thus be clear that though the normal               age of retirement under R. 95 (a) is 55 years,               under R. 285 it is competent to the Government               to  retire compulsorily a  government  servant               prematurely   if  it  is  thought  that   such               premature  retirement  is  necessary  in   the               public interest.  This power can, however,  be               exercised  only in cases where the  Government               servant  has  completed  25  years  qualifying               service  or has attained 50 years of age.   In               order    words,   ordinary    retirement    by               superannuation occurs after attaining 55 years               or   completing  30  years’   service,   while               premature  retirement  can be  forced  on  the               government servant if he has either  completed               25 years of service, or has attained 50  years               of  age.  In the case of premature  compulsory               retirement, the government servant is entitled               to  pension  as indicated in Note  1  to  Rule               285." In that case the appellant before this Court had urged  that his  record  was free from blemish and  Government  was  not justified  in  coming to the conclusion that it was  in  the public  interest  to  retire him.   Turning  down  the  said contention it was stated (1)  A.I.R. 965 S.C. 280. 308               "The  allegations  made by the  petitioner  in               that behalf are very vague and unsatisfactory,               and  so, it would be idle to contend  that  if               the   impugned  note  is  valid,   the   order               terminating the services of the petitioner can               still  be challenged on the ground that it  is               not  justified on the merits or is illegal  or               arbitrary.   Whether or not  the  petitioner’s               retirement  was in the public interest,  is  a               matter  for the State Government to  consider,               and  as  to-  the  plea  that  the  order   is               arbitrary  and  illegal, it is  impossible  to               hold on the material placed by the  petitioner               before us that the said order suffers from the               vice of mala fides." It may be noted that the appellant before us had  challenged the order of termination of service on very similar  grounds and the only additional point urged by him before us is that as  the  order of June 1967 has civil  consequences  it  was

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obligatory  on Government to give him notice to  show  cause against  the order proposed before it was made.  In  support of  this reliance was placed on Orissa v.  Binapani  Dei(1). There  too the Government of Orissa had served the order  of compulsory  retirement on the first respondent but the  main ground  of attack was that whereas according  to  Government records  she was born on 10th April, 1910 and as such  would have  been  due for superannuation on the 10th  April  1965, Government  had  made  an enquiry as to her  date  of  birth behind  her back and asked her to show cause why  a  certain date should not be taken as the correct date of birth.   The report  of the enquiry officer was not disclosed to her  and the  first respondent was not given an opportunity  to  meet the  evidence  used  against  her.   This  was  followed  by Government   refixing  her  date  of  birth   and   ordering compulsory  retirement.  It was observed by this Court  (see p. 629) :               "The   State  has  undoubtedly  authority   to               compulsorily  retire a public servant  who  is               superannuated.  But when that person  disputes               the  claim he must be informed of the case  of               the State and the evidence in support  thereof               and he must have a fair opportunity of meeting               that case before a decision adverse to him  is               taken." With regard to the enquiry it was said that, it was contrary to  the basic concept of justice and cannot have any  value. It  was added that although the order was administrative  in character  it involved civil consequences and must be  made, consistently  with  the  rules  of  natural  justice   after informing the first respondent of the case of the State, the evidence in support thereof and after giving an  opportunity to  the  first  respondent of being  heard  and  meeting  or explaining the evidence. (1)  [1967] 2 S.C. R. 625.                             309 It  will be noticed at once that the facts of this case  are not  in  pari materia with those of  Binapani  Dei’s.   Here there was no dispute nor any claim by the appellant that  he was  asked  to retire before he had attained the age  of  50 years.   All his challenge is directed to the  formation  of opinion by the Government that it was in the public interest to  retire  him.  It is difficult to see how  the  appellant could have explained that it was contrary to public interest to,  retire him if his attack on the ground that  the  order was  made arbitrarily or mala fide could not  be  sustained. The  counter affidavit of the State definitely alleged  that in  forming  the opinion Government had taken  note  of  the adverse remarks in the appellant’s confidential report. The appellant contends that if Government’s action was moti- vated  by the adverse remarks in the reports he should  have first  been  given  notice  thereof and  in  any  event  his representation  against  them should have been  disposed  of before any retirement order could have been passed on him. Our  attention was drawn to G.S.R. 597 of the General  Admi- nistration  Secretariat notification of the State of  Mysore dated 6th July, 1965.  By the said notification the Governor of  the State made a set of rules known as the Mysore  Civil Services  (Confidential Reports) Rules, 1965.  According  to r. 3 thereof :               "In respect of every Gazetted and non-Gazetted               officer an Annual Confidential Report shall be               recorded  assessing as correctly  as  possible               such  officer’s  physical,  mental  and  moral               suitability for his office and for  promotion,

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             his ability to apply intelligently the law and               procedure  prescribed to cases  coming  before               him,  his  treatment of his  subordinates  and               behaviour  to his superiors and colleagues  in               other  departments aid his relations with  the               public." The preparation and transmission of confidential reports are to be made in terms of r. 5 which inter alia directs that  a report  was to be prepared with the greatest caution and  no record  or remarks shall be made lightly on the spur of  the moment  or based on prejudice.  Under r. 8 (1)  all  adverse remarks whether through an ordinary or special report  shall be communicated to the officer concerned, unless the adverse remarks are of such a nature that the communication  thereof is  unlikely  to result in the remedy of the  defect  or  is considered   inadvisable  for  any  other   reason.    While communicating  an  adverse remark, the name of  the  officer recording  the adverse remark shall not be  communicated  to the officer reported upon.  Under r. 9 no appeal lay against adverse remarks made in the annual confidential reports. Our attention was however drawn to a notification dated  6th February  1970  whereby r. 9 was altered so as  to  give  an officer 310 against  whom adverse remarks were made a right to submit  a representation   on  which  a  decision  had  to  be   taken expeditiously and communicated to him.  At the relevant time however  the  said  amended rule was not  in  operation  and consequently  it was not open to the appellant to  challenge the  correctness of the adverse remarks in his  confidential reports  by  way of appeal.  As  the  ,confidential  reports rules  stood at the relevant time, the appellant  could  not have appealed against the adverse remarks and if the opinion of Government to retire him compulsorily was based primarily on  the said report he could only challenge the order if  he was  in a position to show that the remarks ’were  arbitrary or male fide. It  is not necessary for us to examine the rules of  natural justice  in  general but we may quote  observations  from  a judgment  of this Court in A. K. Kraipak v. Union() to  show that  the particular circumstances of a case  considered  in the background of the law ,applicable must be  determinative on the point.  There the Court -.said :               "What  particular  rule  of  natural   justice               should apply to a given case must depend to  a               great extent on the facts and circumstances of               that  case,  the framework of  the  law  under               which the enquiry is held and the constitution               of  the Tribunal or body of persons  appointed               for  that purpose.       Whenever a  complaint               is made before a court that some principle  of               natural justice had been contravened the court               has  to decide whether the observance of  that               rule was necessary for a just decision on  the               facts of that case." In Union of India v. J. N. Sinha(2) the Court was  concerned ,directly  with the principle of natural justice in  similar circumstances.      There the order of retirement was  based on Fundamental Rule 56(J) reading : "Notwithstanding   anything  contained  in  this  Rule   the appropriate authority shall, if it is of the opinion that it is  in 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

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allowances in lieu of such notice." There this Court observed (see p.795): "The  right  conferred on the appropriate  authority  is  an absolute  one.  That power can be exercised subject  to  the conditions  mentioned in the rule, one of which is that  the concerned authority must be of the opinion that (1) [1970] 1 S.C.R. 457 at 469, (2) [1971] 1 S.C.R. 791. 311               it  is in public interest to do so.   If  that               authority  bona fide forms that  opinion,  the               correctness   of   that  opinion   cannot   be               challenged  before courts.  It is open  to  an               aggrieved party to contend that the  requisite               opinion has not been formed or the decision is               based  on collateral grounds or that it is  an               arbitrary decision.The 1st   respondent               challenged the opinion formedby the    Government               on the ground of mala fide.But that ground               has failed .... The impugned orderwas    not               attacked  on  the  ground  that  the  required               opinion  was  not formed or that  the  opinion               formed  was  an  arbitrary one.   One  of  the               conditions of the 1st respondent’s service  is               that  the Government can choose to retire  him               any time after he completes fifty years if  it               thinks that it is in public interest to do so.               Because  of his compulsory retirement he  does               not lose any of the rights     acquired by him               before retirement.Compulsory     retirement               involves no civil consequences.The               aforementioned rule 56(j) is not intended fortaking               any   penal  action  against  the   government               servants.   That rule merely embodies  one  of               the  facets of the pleasure doctrine  embodied               in  Art.  310 of  the  Constitution.   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...   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." The  Court  further noted that a compulsory  retirement  was bound to have some adverse effect on the Government  servant but  such rule of retirement could only be acted upon  after the  officer had attained the prescribed age and  further  a compulsorily retired government servant did not lose any  of the benefits earned by him till the date of his retirement. Allthe  above  observations  apply to  the  facts  of  the appellant’s case.   But  the appellant seeks to  distinguish that case because of the useof  the  expression  "absolute rights"  in  F.R.56(J), rule 285 not being  so  emphatically worded.  But that in our opinion makes no difference.   Both rules give the Government the same 312 or  similar right: so long as the right is not qualified  it

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must  be held to be absolute and no distinction can be  made between r.285 and F.R.56(J) on that ground. The  last  contention of the appellant that  in  the  normal course of things he would have been superannuated at the age of  55  and  would  have reached the  top  position  in  the department  the deprivation whereof was a civil  consequence of  the order, does not bear scrutiny.  If the  confidential reports could be acted upon his promotion could be  withheld even if he was not made to retire ,compulsorily.  If on  the basis  of the confidential reports he is asked to retire  in compliance with that rule he cannot complain because of loss of  position which he might have attained if there  were  no adverse remarks against him. In  the result the appeal fails but we make no order  as  to costs.  We however think it appropriate to take note of  the skillful way in which the appellant put forward his case and dealt  with the points of law with which as a layman he  was not expected to be familiar. V.P.S.                                Appeal dismissed 313