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PETITIONER: R. L. BUTAIL

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 08/09/1970

BENCH: [M.  HIDAYATULLAH, C.J., J. M. SHELAT, G. K. MITTER,C. A. VAIDIALINGAM AND A. N. RAY, JJ.]

ACT: Departmental Rules-Central Water and Power Commission (Power Wing)-Adverse  entries in confidential reports whether  must set  out specific instances justifying them-Whether must  be made   after  reasonable  opportunity  to  show   cause-Non- promotion  on  basis  of  such  entries  whether  punishment attracting Art. 311 of Constitution. Fundamental Rules-Rule 56(1)-Compulsory  retirement-Validity of rule-’Public interest.’

HEADNOTE: The  appellant, an electrical engineer, entered the  service of  Simla Electricity Board in 1934.  In 1949  his  services were  transfeere  d to the Central  Electricity  Commission, later  designated  as  Central Water  and  Power  Commission (Power  Wing).  In 1955 he was also promoted to the post  of Direct(*  and was confirmed as such with effect  from  1960. There  were adverse remarks in his confidential reports  for the years 1964 and 1965.  On these being communicated to him he  made  representation asking for  specific  instances  on which  adverse  information  about him  bad  been  recorded. These  representations were rejected.  In the  meantime  the question   of  filling  the  post  of  Director   (Selection Grade)/Deputy  Chief Engineer arose.  Both in 1964 and  1965 the appellant was over-looked by the Departmental  Promotion Committee  and the Union Public Service Commission for  this post or that of a member.  Later with effect from August 15, 1967,  on completion of the age of 55 years he  has  compul- sorily retired under r. 56(j) of the Fundamental Rules  made under  Art.  309 of the Constitution.  The  appellant  filed three writ petitions in the High Court of Punjab challenging the  validity  of the said entries. and the  said  order  of compulsory  retirement.   The High Court dismissed  all  the writ  petitions.   Appeal  in  this  Court  was  filed  with certificate.   The  appellant’s contentions which  fell  for consideration  were  (1)  that  the  said  two  confidential reports  were contrary to the Departmental Rules in as  much as they did not set out specific instances justifying  them; (2) that they were placed before the Departmental  Promotion Committee and the Public Service Commission before they were communicated to him and he was prejudiced thereby; (3)  that the  refusal  of  the Departmental  Promotion  Committee  to recommend him for the higher posts and of the Public Service Commission  to select him based on such invalid reports  was also  invalid;  (4)  that  making  an  adverse  entry  which resulted  in  withholding  promotion to him  amounted  to  a

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penalty;  since  no opportunity was given to  him  of  being heard in this respect, there was a violation of Art., 311 of the Constitution; (5) that making an entry without holding a departmental inquiry and hearing him was contrary to natural justice;  (6)  that  the adverse entries  in  question  were contrary  to  facts; (7) that the ’said  entries  were  mala fide;  (8)  that the higher posts to which he  was  eligible were promotion and not selection posts at the relevant time; (9)  that the order compulsorily retiring him was bad in  as much as Fundamental Rule 56(j) was itself invalid; (10) that in any 56 event  the  order was not made in public interest  and  was, therefore, contrary to the rule and also, Arts. 14 and 16 of the Constitution. HELD:     (1)  An  examination  of  the  departmental  rules clearly shows that a confidential report is intended to be a general  assessment  of  work  ,performed  by  a  Government servant  subordinate to the reporting authority,  that  such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion,  confirmation etc.  arise.   They  also show that  such  reports  are  not ordinarily   to  contain  .specific  instances  upon   which assessments  are made except in cases where as a  result  of any  specific  incident censure or a warning is  issued  and when such warning is by an order to be kept in the  personal file  of  the ;Government servant.  Such  cases  an  officer making the order- has to give reasonable opportunity to  the Government  servant  to present his case.   The  contention, therefore,  that the adverse remarks against  the  appellant did  not  contain specific instances  and  were,  therefore, contrary  to  the  rules could not  be  sustained.   Equally unsustainable  was  the  corollary  that  because  of   that omission  the  appellant could not make an  adequate  repre- sentation  and that therefore the confidential reports  were vitiated. [62 C--E] (2)  Whenever  a  Government  servant  is  aggrieved  by  an adverse   entry   he  has  an  opportunity   of   making   a representation.   Such a representation would be  considered by a higher authority, who, if satisfied would either amend, correct or even expunge a wrong entry, so that it is not  as if  an  aggrieved  Government  servant  is  without  remedy. Making  adverse entry is not equivalent to imposition  of  a penalty which would necessitate an enquiry or the giving  of a  reasonable opportunity of being heard to the  ,Government servant.   It does not amount to the penalty of censure  set out  in r. 11 of the Central Civil Service  (Classification, Control & Appeal) Rules. [62 H] (3)  The confidential report in respect of the appellant for the  year  1964 was prepared on March 18, 1966.   Since  the Departmental Promotion Committee had met in 1964, obviously, the adverse entry for the year 1964 was not and could not be before that Committee.  If at all the Committee declined  to recommend   the   appellant’s  name   because   of   adverse confidential  reports,  such reports could only be  for  the earlier years.  The record showed that confidential  reports for  1955,  1956  and  1959  were  adverse  to,  him.    The confidential   report  for  1965  was  prepared   in   1966. Therefore,  that  report  also  would  not  be  before   the Committee  when  it declined to recommend the  appellant  in 1965.  The fact that the appellant’s representation  against the  report  for 1964 was not before the Committee  when  it made  its recommendation did not make any  difference.   The representation   made   by   the   appellant   though   made subsequently was actually rejected with the result that  the

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confidential  report  for  1964  remained  unchanged.    The practice followed by the Promotion Committee was that if  in such  a  case a representation were to be  accepted  and  in consequence the confidential report was altered or expunged, the  Promotion  Committee  would  have  to  review  its  re- commendations  in the light of such result.  In the  present case  no question of such a review arose as the reports  for 1964  and  1965  were, in spite of  representations  by  the appellant  neither  altered  nor  set  aside.   There   was, therefore, no question of injustice having been done to  the appellant despite the fact that the Committee had before  it the  confidential report without there being along  with  it any  representation  made  by the appellant.   Nor  did  the question  of breach of natural justice arise in view of  the aforesaid practice followed by the Promotion Committee.  [63 F-64 D] 57 (4)  Under  r.  11  of the  Central  Services  Rules,  1965, although  with  holding promotion is not  a  penalty   which could  be imposed on a Government servant;  the  explanation thereto   expressly   provides  that  non-promotion   of   a Government servant after consideration of his case does not constitute  a penalty. There was, therefore, no question  of the  department having to hold an inquiry and then  only  to decide not to promote the appellant to the higher posts. [64 E] (5)  The  appellant  could  also  not  challenge  his   non- promotion  on the ground of seniority alone.  The post of  a Member was declared to be a selection post by the  President as  early as in 1952.  By Rules made by the President  under Art. 309 dated November 6, 1965, the post of a Member  along with  certain  other posts was declared to  be  a  selection post.   The respondent’s counter affidavit clearly  affirmed that  the post was a selection post.  The burden of  proving otherwise was on the appellant which he had not  discharged. On the material brought on record it could not be held  that the  post of a Member was not a selection post so  that  the mere fact of the appellant being the seniormost amongst  the Directors  in  the department could not entitle  him  to  be appointed [64 F65 B] (6)  The appellant had been unable to prove that the  action against him was mala fide. [69 H-70 A] (7)  The  validity of r. 56(j) cannot be challenged in  view of the earlier decisions of this Court [,71 F-G] Union  of India v. Vol.  J. N. Sinha, [1971] 1  S.C.R.  791, applied. Moti  Ram Deka v. General Manager, N.E.F. Railway, [1964]  5 S.C.R.  587, Gurdev Singh Sidhu v. Punjab, [1964]  7  S.C.R. 587,  T. C. Shivacharana Singh v. Mysore, A.I.R.  1965  S.C. 280  and  Takhatrav Shivdatrai Mankad v. Gujarat,  [1969]  2 S.C.C. 120, referred to. (8)  On the facts of the case it could not be held that  the order of compulsory retirement was not in public interest or that  the authority concerned had not applied its mind.  [72 D-F]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  1614  to 1616 of 1968. Appeals  from the judgments and orders dated April 10,  1968 of the Delhi High Court in Civil Writs Nos. 608-D and  607-D of 1966 and 1550 of 1967. The appellant appeared in person (in all the appeals).

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Jagadish Swarup, Solicitor-General, L, M. Singhvi and S.  P. Nayar, for the respondents (in all the appeals). Shyamala  Pappu,  Bindra Thakur and Vineet  Kumar,  for  the Intervener (in C.A. No. 1616 of 1968).                            ORDER After  having  heard and considered the arguments  urged  on behalf of the parties we are of the view, for reasons  which we  shall set out later on, that all the three appeals  fail and should be35Sup CI/71 58 dismissed.   Order accordingly.  The appellant will  pay  to the  respondents the costs of these appeals.  Such costs  to be one set of costs. The Judgment of the Court was delivered by Shelat,  J. On August 14, 1970 we pronounced our order  dis- missing  these three appeals with costs stating at the  time that  our reasons for the same would follow.  The order  was pronounced at the request of the appellant who desired  that we  should  do  so  before  August  15,  1970  when  he  was completing  58  years of his age.  Accordingly  we  are  now setting out the reasons for the said order. The three appeals, by certificate, question the validity  of two  ,confidential reports for the years 1964 and 1965  made against  the  appellant by the reporting and  the  reviewing officers  in the Central Water and Power  Commission  (Power Wing)  and  the  order  dated May  12,  1967  by  which  the appellant was compulsorily retired on his attaining the  age of 55 years. The  appellant, an electrical engineer, began his career  in the  Simla Electricity Supply Undertaking and  worked  there from  1934 to 1949.  In 1949, he was appointed as a  Project Officer   in   the  Central  Electricity   Commission,   now designated  the  Central Water and Power  Commission  (Power Wing).   He was confirmed in that post in 1950 and later  on was promoted to the post of a director, in which post he was working  since  1955.  He was confirmed in that post  by  an order,  dated April 15, 1963 with retrospective effect  from August 5, 1960. By a communication dated September 16, 1965 he was  informed of  an adverse entry in the annual confidential  report  for the year 1964.  The entry reads as follows :               "....  A  ’Problem Director’ in that it  falls               to  the inevitable lot of some member to  have               him  under  his charge and manage  as  far  as               practicable. . "               "....I  agree with the above even  though  the               officer  is  intelligent and capable  of  good               work   if   he   wishes   to   apply   himself               wholeheartedly." By  another communication dated July 7, 1966  the  appellant was  informed  that an adverse entry had been  made  in  his confidential’  report  also for the year 1965.   That  entry reads as follows               "His  work  during  the  year  was  below  the               average,  considering his senior  position  in               the Directors’ Cadre.  Shri Butail can do good               work if he like(s) to do so." 59 On receiving these communications the appellant made  repre- sentations in which he asked for specific instances on which adverse  opinions  about  him  had  been  recorded.    These representations  were, however, rejected.  In the  meantime, the  question of filling in the post of Director  (Selection Grade)/Deputy  Chief  Engineer  arose.   According  to   the appellant,  this  post as also certain  other  higher  posts

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including that of a member were promotion posts.  Being  the only  permanent director amongst the candidates, he was  the seniormost  of  them all and claimed that he, was  for  that reason  entitled  to be promoted.  Both in  1964  and  1965, however,  he  was overlooked by the  Departmental  Promotion Committee and the Union Public Service Commission. On  May 12, 1967, he was served with an  order  compulsorily retiring  him from service with effect from August 15,  1967 on  completion of the age of 55 years.  The order  was  made under r. 56(j) of the Fundamental Rules made under Art.  309 of the Constitution. The appellant filed three writ petitions Nos. 608 and 607 of 1966  and  1550  of  1967  in  the  High  Court  of   Punjab challenging  the validity of the said entries and  the  said order of compulsory retirement and praying that the said two entries should be expunged and proper entries made, that the orders declaring him unfit for promotion and the said  order of compulsory retirement should be quashed.  The High  Court dismissed all the writ petitions, Hence these appeals. The  appellant contended (1) that the said two  confidential reports were contrary to the rules inasmuch as they did  not set  out specific instances justifying them; (2)  that  they were  placed before the Departmental Promotion Committee  as also   the  Public  Service  Commission  before  they   were communicated  to  him, and therefore, before he  could  make representations against them. that the consequence was  that the  said two bodies had before them the said  reports  only and  were not aware of his objections to them; (3) that  the refusal of the Departmental Promotion Committee to recommend him  for  the  higher  posts  and  of  the  Public   Service Commission to select him, based on such invalid reports. was also  invalid;  (4)  that  making  an  adverse  entry  which resulted  in  withholding  promotion to him  amounted  to  a penalty; therefore, an adverse entry which had such a result would be governed by Art. 31.1 and could not be made  unless before making it the concerned Government servant was  given a  reasonable opportunity of being heard; (5) that,  in  any event,  making  such  an  entry  without  first  holding   a departmental  inquiry and hearing such a Government  servant was  contrary  to natural _justice; (6) that his work  as  a director  was  satisfactory,  that  the  said  entries  were contrary  to facts and that no reasonable person would  have arrived at such 60 adverse conclusions as recorded in the entries; (7) that the said  entries were made, mala fide; and (8) that the  higher posts  to  which  he was eligible  were  promotion  and  not selection  posts at the relevant time, that they  were  made selection posts only in November 1965, and therefore,  being the  only  permanent director amongst all the  rest  of  the directors,  he was entitled by his seniority to the  hip-her post  in  preference to others.  Even  assuming  that  those posts were at the relevant time selection posts, he being  a permanent  director, his case could not be referred  to  the Public Service Commission. Regarding   the   order  compulsorily  retiring   him,   the contention was that Fundamental Rule 56(j) was invalid, that in  any event the order was not made in public  interest  as his  work as a director was satisfactory and  was  therefore contrary  to  the  Rule  and also Arts. 14  and  16  of  the Constitution, The  question raised in regard to the impugned  confidential entries is thus three fold.  Firstly, whether the  reporting authority was required to give specific instances to  enable the appellant to make an adequate representation.  Secondly,

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whether  the  reporting  officer  was  bound  to  hear   the appellant  before deciding to make the entry.  And  thirdly, whether  such  an  entry  amounts to  censure,  one  of  the penalties  provided by r. 1 1 of the Central Civil  Services (Classification, Control and Appeal) Rules, 1965.  That rule enumerates  several  penalties  which can be  imposed  on  a Government servant and amongst minor penalties there set out are   (i)  censure,  and  (ii)  withholding   a   promotion. Compulsory  retirement  is under the rule one of  the  major penalties. In  considering  this  question we may at  the  very  outset notice that the rules regarding preparation and  maintenance of   confidential  reports,  are  by  way  of   departmental instructions and are neither statutory rules nor rules  made under  Art.  309.   Prior to 1961  these  instructions  were contained  in an office order dated July 28, 1955 issued  by the Central Water and Power Commission (Water Wing).  We  do not  know whether they also applied to the Power Wing.   But for  the  present we will assume that they  applied  to  the Power  Wing.   R. 2 of these rules sets out  the  object  of maintaining  confidential  reports,  viz.,  to  ensure  that promotions  were  made  with  the  utmost  fairness  to  the officers on the one hand and with due regard to the interest of  the public service on the other.  The rules,  therefore, enjoin  upon officers at each level to keep a  proper  watch over  the work and conduct of those below them  and  provide training  and guidance to such officers whenever  necessary. For this purpose a continuous record of service in the  form of  confidential reports of all the officers working in  the Commission  was necessary.  Rr. 3 and 7 indicate  that  what was required was a general assessment of work for the  whole of the year, the conduct 61 of   the   officer  concerned,  his   efficiency,   ability, initiative  or  lack  of it etc. and  not  a  judgment  with reference  to any specific incident.  R. 7 in express  terms provides  that  an  adverse entry  relating  to  a  specific incident  should  not ordinarily find place in  a  character roll,  unless, in the course of departmental  proceedings  a specific punishment such as censure has been awarded on  the basis  of  such an incident.  Where,  however,  a  reporting officer feels that though the matter is not important enough to call for departmental proceedings, it is important enough to be mentioned specifically in the confidential report,  he should,  before making such an entry, satisfy  himself  that his  own  conclusion  has  been  arrived  at  only  after  a reasonable opportunity has been given to the officer report- ed  to present his case relating to the incident.  The  rule also  provides that while communicating adverse  remarks  to the officer concerned the substance of such remarks and  not their actual wordings need be conveyed. On March 3, 1961, an office order was issued by the  Commis- sion which superseded all instructions issued previously  on the  subject of maintenance of confidential  reports.   This order  applied to all officers of the  Commission,  gazetted and non-gazetted, and also to its subordinate offices.   The order  once  again recites the importance of  preparing  and maintaining confidential reports.  R. 4 requires that such a report  should  contain  an  appreciation  of  the   general qualities  of  the  Government servant  such  as  integrity, intelligence, keenness, industry, tact, attitude towards his superiors and subordinates, relations with fellow-employees, work-attitudes  etc.,  and also "a  summing-up"  in  general terms of the Government servant’s good and bad qualities and a  categorisation  or rating such  as  ’Outstanding’,  ’Very

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good’, ’Good’, ’Fair’, or ’Poor’.  Such a categorisation is, however,  not necessary in the case of officers of or  above the  rank  of Superintending Engineer.   Rule  10  expressly provides  that  the reporting authority is not  required  to give  any  specific  instances of his good or  bad  work  or conduct  upon  which the opinion is based.  R.  28  provides that while communicating an adverse remark to the  concerned Government servant the substance of such report and not  its actual  wording  need  be conveyed.   That  is  because  the primary  object of such communication is, firstly, that  the concerned  Government  servant may remedy his  defects,  and secondly,  that it should serve as a timely warning  to  the Government  servant  of such defects which  might  otherwise deprive  him  of  chances of promotion  in  future.   R.  32 entitles  a  Government servant to  make  a  representation. Such representation would be examined by an officer superior in rank to the reviewing officer.  That officer would either reject  the  representation  or alter the  remark  where  he thinks  necessary and in the event of his finding  that  the remark  is actuated by malice or is incorrect or  unfounded, be would expunge it.  R. 34 provides that adverse 62 centuries  relating  to  any  specific  incident  will   not ordinarily  find  place in the  confidential  record.   But, where  a  warning  is issued as a  result  of  any  specific incident,  a  copy thereof will ordinarily be  kept  in  the personal file of the Government servant concerned.  In  that case  he has to make a specific order to that  effect.   But before  making such an order he must give to  the  concerned Government  servant a reasonable opportunity to present  his case  relating  to  the  incident.   In  case,  departmental proceedings  are instituted as a result of such an  incident and a formal punishment, such as censure, is awarded, a copy of the order of such punishment should invariably be  placed in the confidential record of the Government servant. These  rules abundantly show that a confidential  report  is intended  to be a general assessment of work performed by  a Government  servant subordinate to the reporting  authority, that such reports are maintained for the purpose of  serving as  data of comparative merit when questions  of  promotion, confirmation  etc. arise.  They also show that such  reports are not ordinarily to contain specific incidents upon  which assessments  are made except in cases where as a  result  of any  specific incident a censure or a warning is issued  and when such warning is by an order to be kept in the  personal file of the Government servant.  In such a case the  officer making the order has to give a resonable opportunity to  the Government  servant  to present his  case.   The  contention therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be  sustained.  Equally unsustainable is the corollary  that because,  of that omission the appellant could not  make  an adequate representation and that therefore the  confidential reports are vitiated. Further,  the  rules  do  not provide  for  nor  require  an opportunity  to be heard before any adverse entry  is  made. The contention that an enquiry would be necessary before  an adverse  entry is made suffers from a  misapprehension  that such  an entry amounts to the penalty of censure set out  in r.  1  1  of the  Central  Civil  Services  (Classification, Control  and  Appeal) Rules.  The entry is  made  under  the Office  Order  of  1961 set out above by way  of  an  annual assessment  of the work done by the Government  servant  and not  by  way  of  a penalty under  the  said  Central  Civil Services  Rules.   True it is that such  remarks  would  be,

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taken  into  consideration when a question such as  that  of promotion  arises  and when comparative  merits  of  persons eligible for promotion are considered.  But then, whenever a Government servant a aggrieved by an adverse entry he has an opportunity   of   making   a   representation.    Such    a representation  would be considered by a  higher  authority, who,  if  satisfied,  would either amend,  correct  or  even expunge a wrong entry, so that it is not as if an  aggrieved Government servant is without remedy.  Making of an  adverse entry is thus not 63 equivalent   to   imposition  of  a  penalty   which   would necessitate  an  enquiry  or  the  giving  of  a  reasonable opportunity  of  being  heard to  the  concerned  Government servant.  This part of the appellant’s grievance, therefore, has to be rejected. The  Departmental Promotion Committee and the  Union  Public Service Commission which met in 1964 and 1965 did not recom- mend  or  select  the appellant for  the  post  of  Director (Selection  Grade)  or that of a Member.  The  argument  was that being the only permanent director amongst all the  rest of the directors,. he was the senior most of them all.  Yet, one  Aswath  was  first promoted to  the  post  of  Director (Selection-  Grade)  in December 1964 and then  a  few  days later  to  the  post  of Member.   In  this  connection  the appellant’s  allegations were two.  The first was  that  the adverse  confidential reports for 1964 and 1965 were  placed before   the  Departmental  Promotion  Committee   and   the Commission  long  before they were communicated to  him  and therefore  before he could make any  representation  against them.   Consequently, the two bodies had no  opportunity  of knowing his side of the case and relying on the said reports only  overlooked  his  right  to  promotion.   Further,  the refusal  to  recommend him for the higher post  amounted  to withholding  of  promotion,  a penalty which  could  not  be inflicted on him without a departmental inquiry.  The second was that in any case Aswath ought not to have been raised to the  higher post as allegations of financial  irregularities were  outstanding  against him in consequence  of  which  he resigned on August 1, 1965 and left for the United States of The confidential report in respect of the appellant for  the year 1964 was prepared on March 18, 1965.  It was, no doubt, released  to the appellant on September 16, 1965.   But  the Promotion  Committee met in May 1964 and recommended  Aswath for  the  post of Director (Selection  Grade).   Aswath  was promoted  to  that post in December  1964.   Obviously,  the adverse  entry  for the year 1964 was not and could  not  be before that Committee.  If at all the Committee declined  to recommend   the   appellant’s  name   because   of   adverse confidential  reports,  such reports could only be  for  the earlier  years.  The record shows that confidential  reports for 1955, 1958 and 1959 were adverse to him.  These had been communicated to him from time to time and the appellant  had made  representations against them and bad  failed.   Aswath was appointed a member on December 30, 1964 when the  appel- lant  was again overlooked both by the  Promotion  Committee and the Public Service Commission.  But that again could not be on account of the confidential report for 1964, which  as aforesaid, was recorded much later in March 1965. 64 The  confidential  report  for 1965 was  prepared  in  1966. Therefore, the report for 1965 would not be before that Com- mittee when it declined to recommend the appellant in  1965. This  time the report for 1964 would be before it and’  that too  without his representation against it as,, that  report

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had been conveyed to the appellant in September 1965.   That fact,   however,   cannot   make   any   difference.     The representation   made   by  the   appellant,   though   made subsequently, was actually rejected with the result that the confidential   report  for  1964  remained  unchanged.   The practice followed by the Promotion Committee was that if  in such a case a representation were to be accepted and in con- sequence  the confidential report was altered  or  expunged. the   Promotion   Committee  would  have   to   review   its recommendations  in  the  light of such a  result.   In  the present case, however, no question of such a review arose as reports for 1964 and 1965 were, in spite of  representations by the appellant, neither altered nor set aside.  There was, therefore, no question of any injustice having been done  to the appellant despite the fact that the Committee had before it  the confidential report without there being  along  with it,  any representation made by the appellant.  Nor did  the question of a breach of natural justice arise in view of the aforesaid practice followed by the Promotion Committee. Under  r. 11 of the Central Services Rules,  1965,  although withholding  promotion is one of the penalties which can  be imposed  on a Government servant, the  explanation  ’thereto expressly  provides  that  non-promotion  of  a   Government servant after consideration of his case does not  constitute a  penalty.   There  was,  therefore,  no  question  of  the department having to hold an enquiry and then only to decide not  to promote the appellant to the higher post.  Again  no question  of  breach of the principles  of  natural  justice arises in such a situation. The appellant also cannot challenge his non-promotion on the ground  of seniority alone.  It appears that the post  of  a Member was declared to be a selection post by the  President as early as 1952.  That decision is evidenced by the  letter dated March 15, 1952, Appendix III to the  counter-affidavit of  the respondents in Writ Petition No. 608/D of 1966.   By rules  made by the President under Art. 309, dated  November 6,  1965,  the post of the Member along with  certain  other posts  was once again declared to be a selection post.   The respondents’ counter-affidavit clearly affirms that the post was a selection post and that when Aswathi was appointed  to that post in December 1964. the selection made from  amongst the  candidates  was on an all India basis and  not  on  the footing  that the post was one where appointment was  to  be made on the basis of seniority in the Department alone.  The appellant  has  not  shown that the statement  in  the  said letter of March 15, 1952 that the President bad declared the post of 65 Member  a  selection  post  was not  correct  or  that  that declaration  was not under Art. 309.  For such  a  challenge the burden of proof was upon him, a burden which he has  not discharged.   We  are,  therefore,  bound  on  the  material brought by him on record to proceed on the footing that  the post  of  a  Member was a selection  post  since  1952,  and therefore, the fact of his being the seniormost amongst  the directors in the department did not by itself entitle him to be appointed. The  appellant’s  contention that Aswath ought not  to  have been  appointed  first to the post  of  Director  (Selection Grade)  and  then as a Member as there were  allegations  of financial  irregularities  against  him was  denied  by  the respondents.  The contention involves questions of  disputed facts.   We  do  not think that  the  circumstances  of  the present case make it necessary for us to undertake the  task of inquiring into such disputed facts which require  leading

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considerable  additional evidence by both the parties.   But assuming  that  there  were allegations  made  against  that officer, both the Promotion Committee and the Public Service Commission   were   competent  to  take   that   fact   into consideration  and  assess its worth.  On the  materials  on record  we can hardly be called upon to arrive at  any  such assessment  and substitute our opinion in place  of  theirs. We cannot consequently accede to the appellant’s  contention that  his non-promotion to the aforesaid superior  posts  or either of them was vitiated for any of the reasons  advanced by him. On the question of non-promotion, the appellant had demanded disclosure   of   the  proceedings  before   the   Promotion Committee,  which demand was resisted by the respondents  by claiming  privilege.  In our opinion it is not necessary  to go  in  this  case into the  vexed  question  of  privilege, firstly, because the demand for disclosure was in the nature of  a  fishing  inquiry  into the  papers  relating  to  the proceedings  of  that Committee, and secondly,  because  the adverse  confidential  reports,  which,  according  to   the appellant,  were responsible for the Committee’s refusal  to recommend  his name, were communicated to the appellant  and have  been  produced by him.  The demand for  disclosure  of those  prcceeding’s, therefore, cannot be entertained  as  a bona fide demand. There,  now remains his allegation of mala fides.   In  Writ Petition  1 550 of 1967 relating to the order of  compulsory retirement the appellant bad stated that in order that  this allegation  may be properly appreciated he would set out  in one consolidated statement, Ex.  G to that petition, all the incidents on which be relied upon to, prove his case of mala fides.   The allegations collected in that  exhibit  briefly stated  are as follows : (i) that he was declared unfit  for promotion to favour Aswath in spite of a warning having been given to him for financial irregula- 66 rities,  that  the  said Aswath resigned and  left  for  the U.S.A. as soon as the appellant took resort to the court and that  some  higher authorities were also involved  in  those irregularities; (2) that though the Promotion Committee  met in  1963  no  promotions were  recommended;  that  this  was "presumably" done because Aswath could not then be  promoted on  account  of  the said warning; (3)  that  there  was  no adverse confidential report against the appellant for  1963; therefore,  when  the Promotion Committee met in  1964,  his grading  could not be reduced.  Yet, he was  superseded,  in spite  of  his being the only permanent director,  by  three officers  who  had  not yet  been  confirmed  as  directors. "Presumably" he was declared unfit for promotion as the said Aswath  did not get a grading higher than "good";  that  the post  of Member was filled in by direct recruitment and  not by  promotion "presumably" because the  Promotion  Committee was  prejudiced against him as he had taken recourse to  the court  and desired that lie should be superseded by  Aswath; (5) that the appellant was desirous of ascertaining  whether those  who  made and confirmed adverse entries  against  him were   also   involved  in  the   said   alleged   financial irregularities  and  whether  they  sat  on  the   Promotion Committee  which declared him unfit for promotion; (6)  that as  he  was superseded by three officers who  were  not  yet confirmed  as  directors  he applied  for  the  reasons  for withholding promotion from him.  Instead of furnishing those reasons the appellant was given threats and a transfer order which had the effect of his having to work under Aswath, the said two adverse reports and finally the order of compulsory

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retirement; (7) that though he called for the files relating to  the  said transfer orders to ascertain if  he  had  been shown responsible for the failures of the reporting officer, V. Venugopalan, their production was refused on the plea  of privilege;  (8)  that  in  1958,  the  appellant  complained against the Administrative Officer, one Dhawan, and demanded a disciplinary enquiry against him, that no action was taken against  that  officer and the appellant "fears"  that  some grave  irregularities were made in that case "and  the  same are  being used to prejudice the authorities  against  him". He  called  for the connected file but  its  production  was refused  on the ground of privilege; (9) that in the  matter of  Dhawan, the appellant’s personal assistant,  one  Nidhan Singh,  was  asked  to  disclose  the  evidence  which   the appellant  had collected against Dhawan, that  Nidhan  Singh was  victimised  for his refusal to do  so,  and  therefore, successfully  filed  two writ petitions, that while  one  of them was pending, one K. P. S. Nair and the said Venugopalan asked  the  appellant  to file false  affidavits  which  the appelant  refused;  (10) that the work of the  appellant  in each  of the directorates where he worked  was  satisfactory though  the  volume of work was increased  and  the  minimum essential  staff was not made available to him, that  though there  were  no  causes  for  complaint  against  him,   the appellant was served with the order 67 compulsorily   retiring   him;   (ii)   that   the   adverse confidential report for 1964 was put up before the Promotion Committee months before it was communicated to him resulting in  withholding  of  his  promotion;  (12)  that  under  the regulations  made  under Art. 320 of  the  Constitution  the appellant’s  case for promotion had not to be Placed  either before  the  Promotion  Committee  or  the  Public   Service Commission.   The President’s order declaring  the  superior posts  for which the appellant was \ eligible  as  selection posts  was made months after the selection by those  bodies. The  said  posts  not being selection  posts  then,  if  the appellant was to be denied promotion a departmental  enquiry was  necessary  under r. 16 of the  Central  Civil  Services Rules, 1965; and (13) that while the present writ petitions, were  still  pending, he was asked to  vacate  the  premises occupied by him and the allotment thereof in his favour  was cancelled. In the counter-affidavit filed by the Under Secretary to the Ministry  of Irrigation and Power it is denied  that  Aswath was  promoted  to the post of the Member,  the  respondents’ case being that the post was a selection post and Aswath was appointed  in  that  post  on the  basis  of  an  all  India selection  by  the  Union Public  Service  Commission.   The selection  was made on merits with due regard  to  seniority and not seniority alone, and the appellant was not appointed to  that  post because the Commission did not find  him  fit enough  for  that post.  The counter-affidavit  denied  that Aswath had committed any financial irregularities or that he had  resigned  or  left India because of  any  such  alleged irregularities.  He resigned and went to U.S.A. to take up a more  remunerative  post.   Barring a  bare  allegation,  no materials  are brought on record by the appellant  to  prove the alleged irregularities by Aswath or his having  resigned and  left  this  country  on account  of  any  such  alleged irregularities  or of any action having been  taken  against him.   There  is also no material on record to  justify  the allegation that "some higher authorities" were also involved in those alleged irregularities.  Allegations 2, 3 and 4 are merely conjectures on the appellant’s part and are not based

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on  facts.   There  is no material on record  to  show  that Aswath was given any warning or that the Promotion Committee did  not  recommend  any  promotions  in  1963  because,  in consequence’  of such an alleged warning.  Aswath could  not be  promoted in’ that year.  The counter-affidavit  concedes that  there was no adverse confidential report  against  the appellant for the year 1963.  It also concedes that  amongst the directors the appellant was the only confirmed director. The  respondents’ case, however, was that promotions to  the higher  posts,  such  as that  of  the  Director  (Selection Grade),  Deputy  Chief Engineer, Member etc., were  made  on merits with due regard to seniority and not seniority alone, as those higher posts were selection posts.  Appointment 68 to those posts were made on the basis of recommendations  by the Promotion Committee, who made such recommendations after considering  the  comparative  merits of  persons  who  were eligible.   The  fact that the appellant was senior  to  the rest  of the directors did not, therefore, mean that he  had for  that  reason alone to be recommended.   The  allegation that  the  Promotion Committee was  prejudiced  against  him because he had taken resort to the court cannot be seriously taken.   There is no averment as to who amongst the  members of that Committee were prejudiced against him as alleged, or whether and how they were affected by his having gone to the court.   Allegation  (5)  is  obviously  irrelevant  on  the question  of  mala  fides  and the  demand  made  there  was actuated  by  a desire to have a fishing  inquiry  into  the records.   There is nothing on record which would  cast  any doubt  that the members of the Promotion Committee  did  not make their recomendations on the basis of comparative merits of the candidates before them, whose records of service were before  the Committee.  As regards the allegation about  the transfer  orders, the respondents’ reply was that they  were made  according to the administrative exigencies.  There  is no evidence on record to show that they were actuated by any malice  or  any  such  other motive.  It  may  be  that  the appellant  might  have felt galling to have  to  work  under Aswath  after Aswath had been appointed to the higher  post. It is possible to take the view that such a position should, if  possible,  have  been avoided.  But the  fact  that  the appellant  would have to work under Aswath by itself  cannot necessarily  mean  that that particular transfer  order  was made  mala fide.  Allegation (7) is again sheer  conjecture. Further,  it  is founded on an assumption  that  there  were failures  on  the part of the said Venugopalan and  that  an attempt  was  made  to  shift  those  failures  on  to   the appellant.   Regarding the case of Dhawan, it  was  conceded that  in  1958 the appellant had asked  for  a  disciplinary inquiry against that officer.  No action, however, was taken against  him  presumably  because  no  case  was  made   out justifying  such  an  enquiry.   The  allegation  that   the appellant  "fears that some grave irregularities  have  been made in this case" (i.e., in the matter of Dhawan) and  that the  same were now being used against him is again a  matter of speculation on the appellant’s part and is, therefore, no evidence on which the question of mala fides can be decided. Allegation  (9) was denied by K. P. S. Nair and  Venugopalan in their respective affidavits.  Beyond the assertion by the appellant and the denial by Nair and Venugopalan there is no independent  material  on which one can judge the  truth  or otherwise of the allegation.  In the proceedings referred to there,  Dhawan  had filed an affidavit denying  that  Nidhan Singh  was asked to disclose the evidence collected  by  the appellant  against him or that Nidban Singh for his  refusal

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to do so was victimised.  There is no material to show  that Dhawan’s said affidavit was 69   disbelieved in those proceedings.  As  regards  allegation (10),  the appellant’s own estimate of his work cannot be  a basis for any decision.  According to the counter-affidavit, the staffing of each, directorate in the Commission depended on  the available staff and the exigencies of work  in  each department.  Even assuming that the appellant was not  given an  adequate  staff, it does not follow that that  was  done with any mala fide object.  Allegation (11) has already been considered, and therefore, we need not repeat what has  been earlier stated.  As regards allegation (12) we have  already referred  to the letter, dated March 15, 1952  stating  that the  posts  to  which the appellant was  aspiring  had  been declared selection posts by the President.  There is nothing on record to show that the contents of that letter were  not correct  or that the President had not validly made such-  a declaration.   If those posts were thereupon made  selection posts  and  the selection for them were to be  made  on  the basis  of  an  all  India  selection,  it  is  difficult  to understand  the  appellant’s  case that  because  he  was  a confirmed  director his case need not have to go before  the Promotion  Committee and the Public Service Commission.   In any  event, consideration of his case, as also the cases  of others by the Promotion Committee has no relevance so far as the  case  of mala fides is concerned.   Further,  there  is nothing to show that the reporting officer and the reviewing authority, who were responsible for the confidential reports relating  to  the appellant, were members of  the  Promotion Committee or were in any event responsible for the appellant not  having been recommended.  The last allegation that  the demand  from  him of the premises allotted to him  was  made because  of animus against him has no relevance to the  case of  mala  fides, as that demand must have been made  in  the usual  course after the order of compulsory  retirement  was passed.   Obviously,  he  could not  be  allowed  to  retain possession of those promises once be was made to retire from service. As earlier stated, some of the allegations as to mala  fides are  matters  of conjectures and speculation  and  some  are vague  in  the  sense  that they  do  not  specify  who  the particular officers were who mala fide made adverse  entries against  him, as, during the years 1955 to 1965  there  were various  officers  who as part of their duty  had.  to  make assessment   of  the  appellant’s  work  and   record   such assessment   in  his  confidential  reports.   Reading   the material  on  record one cannot help forming  an  impression that  the appellant had entertained a high estimate  of  the work  done  by  him,  was piqued  by  his  not  having  been recommended  and selected for the higher posts to  which  he believed  be  bad become entitled and began  since  then  to nurse  an  obsessed feeling of being persecuted by  all  who were above him.  In view of the reasons afore-stated, we are of the view that he has not been able to make out a case, 70 of  mala fides in spite of his long and  detailed  arguments before us. As  stated  earlier,  W.  P. 1550  of  1967  challenged  the validity   of   the  order  by  which  the   appellant   was compulsorily  retired from service with effect  from  August 15, 1967 when he completed the ,age of 55 years.  The  order was  admittedly  passed under r. 56(j)  of  the  Fundamental Rules,  as amended by Fundamental (Sixth  Amendment)  Rules, 1965.   Cl.  (a)  of  that rule  provides  that,  except  as

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otherwise  provided  in the rule, every  Government  servant shall retire on the day he attains the age of 58 years.  Cl. (d),  however, authorises the Government to grant  extension of service up to the age of 60 years provided such extension is in public interest and the grounds therefor are  recorded in writing.  Cl. (j), with which we are presently concerned, reads as follows :               "Notwithstanding  anything contained  in  this               Rule,  the appropriate authority shall, if  it               is  of  the opinion that it is in  the  public               interest to do so, have the absolute right  to               retire  any  Government servant after  he  has               attained the age of fifty-five years by giving               him  notice of not less than three  months  in               writing :" The  Office  Memorandum, dated July 10, 1966 issued  by  the Ministry of Home Affairs provides (1) that six months before a  Government servant attains the age of 55 years, his  case should  be reviewed and a decision taken whether or not  his retention in service beyond the age of 55 years is in public interest,  and (2) that once a decision is taken  to  retain him  beyond  the age of 55 years,  such  Government  servant would continue in service automatically till he attains  the age  of  compulsory retirement. i.e., 58 y‘ars of  age.   It further provides that if the appropriate authority considers that retention of a Government servant beyond the age of  55 years  is not in public interest, such authority  must  take necessary  action to serve three months notice in  terms  of cl. (j) of F. R. 56.  That the requisite notice in terms  of cl.  (i)  of F.R. 56 was served on the appellant is  not  in dispute.   In  Union of India v. Col.  J. N.  Sinha(1)  this Court  stated that F. R. 56(j) in express terms  confers  on the  appropriate  authority an absolute right  to  retire  a Government  servant on his attaining the age of 55 years  if such  authority  is  of the opinion that  it  is  in  public interest so to do.  The decision further states               "If  that  authority  bona  fide  forms   that               opinion,  the  correctness  of  that   opinion               cannot  be  challenged before courts.   It  is               open to an agrieved 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." (1)  [1971] 1 S.C.R. 791. 71 The  appellant relied on Moti Ram Deka v.  General  Manager, N.E.F.  Railways(1) where rules 148 (3) and 149 (3)  of  the Indian  Railway Establishment Code were held  to  contravene Art. 311 (2), and therefore, invalid.  That decision  cannot apply  to  the present case as the rules there  in  question dealt  with  the right to terminate service on notice  of  a prescribed period.  ’The Court there held that a rule cannot confer  on  the Railway administration  power  to  terminate service  while  at  the same time laying down  the  age,  of superannuation  so  as to be in contravention  of  the  pro- visions of Art. 311(2).  Similarly, in Gurdev Singh Sidhu v. Punjab(1)  a rule conferring an absolute right to  retire  a Government  servant  after  he had completed  ten  years  of qualifying  service, though providing that such power  shall not  be exercised except when it is in public interest,  was struck  down  as  contravening  Art.  311(2).   The   Court, however,  held that there were two valid exceptions  to  the protection afforded by Art. 3 11 (2).  These were (1)  where a permanent public servant was asked to retire on the ground that  he  had reached the age of  superannuation  which  was

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reasonably  fixed, and (2) that he was compulsorily  retired under  the rules which prescribed the normal age  of  super- annuation   and  provided  a  reasonably  long   period   of qualifying  service after which alone compulsory  retirement could  be ordered.  The first would not amount to  dismissal or  removal from service within Art. 311(2) and  the  second would be justified by the view taken by this Court in a long series of decisions.  In T. C. Shivacharana Singh v. Mysore, (  3  ) rule 255 of the Mysore Civil  Services  Rules,  1958 conferring  power  on Government to  retire  compulsorily  a Government  servant  in public interest  on  his  completing twenty-five  years of qualifying service or attaining  fifty years of age, though the age of normal superannuation  under r.  95 (a) was fixed at fifty-five years, was upheld on  the ground  that the rule laid down a reasonably long period  of qualifying  service.  (See Takhatrav  Shivdatrai  Mankad  v. Gujarat, (4) particularly the observations at p. 123). Since the question of validity of such a rule has thus  been concluded,  such a challenge is no longer available  to  the appellant. The affidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the  impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs,  reviewed the case of the appellant and came to the conclusion that it was  in  public  interest that  he  should  be  compulsorily retired  on  his  attaining fifty-five Vears  of  age.   The affidavit  also  avers that the  appropriate  authority  had "carefully considered all relevant factors (1)  [1964] 5 S.C.R. 587. (3)  A.I.R. 1965 S.C. 280. (2)  [1964] 57 S.C.R. 587. (4)  [1969] (2) S.C.C. 120. 72 relating  to the case of the petitioner (the appellant)  and came  to the definite opinion that it was not in the  public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years." In  their reply-affidavit, dated July, 10, 1967, in *.P. 1550 of  1967 it  is  further  stated that before the  said  decision  was reached,   the   appellant’s  entire  service   record   was considered  including his confidential reports,  that  where such reports were adverse they had been earlier comnunicated to  him  from  time to time, that  the  appellant  had  made representations against them to the competent authority  and even  personal interviews before superior officers had  been granted to him to vindicate his point of view.  It was after all  this  had been done and the  confidential  reports  had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F. R. 56(j) should be resorted to.  It may well be that in spite of the work of the appellant being satisfactory. as he  claimed  it  was, there may  have  been  other  relevant factors,  such  as  the history  of  the  appelant’s  entire service  and confidential reports throughout the  period  of his service, upon which the appropriate authority may  still decide  to order appellant’s retirement under F.  R.  56(j). Further,  there is nothing to show that the  impugned  order was not in public interest.  As aforesaid, Col J. N. Sinha’s case(1)  clearly  lays  down that the  question  as  to  the correctness of such a decision by the appropriate authority, provided  it  is bona fide, would not be gone into  by  this Court.   We  have already negatived the plea of  mala  fides raised  by the appellant.  Consequently, a plea of  lack  of bona  fides can hardly be entertained.  Likewise,  the  plea

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that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in  the  affidavits  cited earlier, no  reason  having  been adequately  shown to discard those statements as  untrue  or otherwise  unbelievable.   That being the position,  we  are constrained  to  come to the conclusion that  the  appellant has-failed to make out his case in any one of his three writ petitions. The appeals must fail and are dismissed with costs. G.C.                                                 Appeals dismissed. (1) [1971] 1 S. C. R. 791. 73