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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: CHANDRA MOHAN NIGAM & OTHERS

DATE OF JUDGMENT19/09/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. SINGH, JASWANT KAILASAM, P.S.

CITATION:  1977 AIR 2411            1978 SCR  (1) 521  1977 SCC  (4) 345  CITATOR INFO :  D          1980 SC 563  (13,19,24,31)  RF         1980 SC2084  (5)  R          1981 SC 594  (5)

ACT: Service   Law-All   India   Services   (Death-cum-Retirement Benefits)  Rules,  ’1958, R. 16(3)-Instructions  by  Central Government   regarding   procedure,   whether   binding   on Government-Review of officer’s service records at completion of  50  years  age-Favourable  report  of  Review  Committee accepted  by State and Central  Governments-Service  records reviewed  by  second Review ,Committee  an  same  materials, prior to completion of 54 years age-Compulsory retirement on recommendation  of second Review Committee,  whether  valid- Retirement  u/r  16(3) vis a vis  the  constitutional  right under Preventive Detention Act.

HEADNOTE: Shri  Nigam  was  a  member  of  the  Indian  Administrative Service.   During  his service career, he had  some  adverse entries  in his character roll.  He was suspended  in  1964, pending  enquiry  on account of  certain  strictures  passed against  him by the Election Tribunal, but  was  reinstated when  the High Court expunged the strictures on appeal.   On December 29, 1967, Shri Nigam attained the age of 50  years, and,  following  the Central Government’s  instructions,  in October  1969,  a  Review  Committee  examined  his  service records  under  R. 16(3) of the All  India  Services  (DCRB) Rules   1958,   as  amended  in   1969.    The   Committee’s recommendation for Shri Nigam’s continuance in service,  was accepted by the State Government, and the Central Government did  not  communicate any disagreement.  In  May  1970,  the State Government set up a second Review Committee u/r. 16(3) which  examined  Shri Nigarm’s service records on  the  same materials,  and  recommended  compulsory  retirement.    The recommendation  was accepted, and an order dated August  22, 1970,  was passed, compulsorily retiring him.  Shri  Nigam’s writ  petition  was allowed by a Single Judge  of  the  High Court,  and  a  State appeal was rejected  by  the  Division Bench,  which  found.  the case to  be  analogous  with  the infringement of a constitutional right under the  Preventive

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Detention Act. Dismissing the appeal by certificate, the Court, HELD  :  (1) Since Rule 16(3) itself does  not  contain  any guidelines, directions or criteria, the instructions  issued by   the  Government  furnish  an  essential  and   salutary procedure   for  the  purpose  of  securing  uniformity   in application   of  the  rule.   They  are  embedded  in   the conditions  of service, and are binding ,on the  Government, and  cannot be violated to the prejudice of  the  Government servant. [531 A-B] Santram  Sharma v. State of Rajasthan & Anr. [1968] (1)  SCR 111  and Union of India v.  K. P. Joseph & Ors.  [1973]  (2) SCR 752, applied. (2)  Once  a Review Committee has considered the case of  an employee, and the Central Government does not decide, on the report of the committee endorsed by the State Government  to take any prejudicial action against an officer, there is  no warrant  for a second Review Committee under the  scheme  of rule 16(3) read with the instructions, to reassess his  case on  the  same materials,  unless  exceptional  circumstances emerge  in the mean time or when the next stage  for  review arrives. [531 C-D] (3)  The   principle  governing  the  order  of   preventive detention  with regard to effective  representation  against such  order, is not applicable in the case of an  order  for compulsory retirement which casts no stigma on a  Government servant.   The test which has been laid down in the case  of preventive  detention is in context of right  to  individual liberty  of a person which is a fundamental right  enshrined in the Constitution while the order of compulsory retirement      522 is passed in respect of a Government servant who has ceasedto have a right,  as  such, to continue in  Government  service under the rulesgoverning his  employment. [528 G-H] State of Orissa v. Bidyabhushan Mahopatra [1963] Supp.(1) SCR 648,  referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.161     of 1974 and 1782 of 1973. From  the  Judgment  and  Decree  dated  13-4-1973  of   the Allahabad High Court in Special Appeal No. 698 of 1971. S.N. Kacker, Sol.  Gen., O. P. Rana for the Appellant  in CA No161/74 and R-2 in CA No. 1782/73. S.N.  Kacker,  Sol.   Genl. and Girish  Chandra  for  the Appellant in CA No. 1782/73. Yogeshwar  Prasad, (Mrs.) S. K. Bagga, Miss Meera  Bali  and Miss, Rani Arora for Respondent No. 1 in both the appeals. The Judgment of the Court was delivered by. GoswAmI,  J.  These  appeals by  certificate  are  from  the judgment  of the Division Bench of the Allahabad High  Court centering  round  an  order of compulsory  retirement  of  a senior officer in the Indian Administrative Service. The  first  respondent, Chandra Mohan  Nigam,  (briefly  the respondent)  was  recruited  in  the  Indian  Administrative Service  in Uttar Pradesh Cadre as a, War-service  candidate in  1946 and he joined service on March 23, 1947.   For  the purpose of seniority, etc. he was allotted to the year 1941. In  1949  he  was  promoted to the  senior  scale.   He  was appointed  Commissioner of Faizabad and Gorakhpur  Divisions in  1962.   On June 4, 1967, he was,  posted  as  Secretary, Local  Self  Department  in the State  Government.   He  was appointed  Judicial Member of the Board of Revenue in  1969.

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He attained the age of 50 years on December 29, 1967.  By an order  dated  August 22, 1970, the President  of  India,  in consultation  with  the  Government  of  Uttar  Pradesh,  in pursuance of the power conferred by sub-rule (3) of rule  16 of  the All India Services  (Death-cum-Retirement  Benefits) Rules   1958,  passed  the  impugned  order  of   compulsory retirement  of the respondent in the public interest on  the expiry  of  three  months from the date of  service  of  the order. The  respondent challenged  the  said  order  by  a   writ application before the Allahabad High Court and the  learned single   Judge   allowed  the  same  on   the   grounds   of "contravention  of  the justifiable and  binding  rules  and because  the order was based on consideration of  irrelevant matters and was also vitiated by bias". Both  the Union of India. and the State of U.P. appealed  to the Division Bench of the High Court against the judgment of the learned single Judge.  The High Court by an order  dated April  13,  1973,  dismissed both the appeals  by  a  common judgment..  The  Division Bench did not agree with  all  the reasons given by the learned single Judge and 523 quashed the impugned order holding that "the decision of the Central  Government  to  retire Shri Nigam  being  based  on collateral facts was invalid". The  impugned  order of compulsory retirement was  based  on four grounds. According  to the Division Bench  the  ground relating to an order ofsuspension,  on account of  certain strictures of the Election Tribunalwas the "gravest’ of all the four.  Since according to the DivisionBench this ground  was  absolutely  non-existent  on  account  of   the strictures having been later on set aside, it was of opinion that  the  non-existent ground prevailed  with  the  Central Government to take the decision for compulsory retirement of the respondent.  The Division Bench observed "we are  unable to  hold  that if the Government had excluded  the  case  of suspension  from  consideration, it would  nonetheless  have reached the same decision, namely, to take action for’  Shri Nigam’s  premature retirement’.  It is complained before  us by  the  appellants  that  the  Division  Bench  erroneously invoked the principle of law laid down by this Court in  the matter  of  preventive  detention which is that  if  one  of several  grounds is irrelevant or non-existent and the  said ground is not inconsequential or non-essential, an order  of detention  is  invalid.  Applying the above  principle,  the Division  Bench quashed the impugned order.  The High  Court granted certificate to the appellants for leave to appeal to this  Court and that is how these appeals have  come  before us. Before we proceed further a brief reference to the facts and circumstances may be appropriate. The  respondent during his service career had the  following adverse entries in his character roll :               (1)   A  warning  was administered to  him  on               December 6, 1953, for taking undue interest in               the ejectment of tenants from a house owned by               him at Lucknow.               (2)   Another warning was issued to him on Au-               List 31, 1962, for having acquired a car  from               the Varanasi Corporation while working as  the               Administrator   of  the   Varanasi   Municipal               Corporation.               (3)   He   was  also  once  warned   for   not               observing,  proper  rules  and  procedure  for               utilizing the fund earmarked for lower income,

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             group housing scheme towards the  construction               of a market (1956-1957).               (4)   He, was also placed under suspension  in               1964 in connection with some strictures passed               on  him  by the Election Tribunal  in  a  case               relating   to  the   Gorakhpur   Parliamentary               Constituency elections. With  regard to the fourth entry, it appears  that  although Shri Nigam had been suspended pending enquiry on account  of certain   strictures  made  against  him  by  the   Election Tribunal,  these  strictures were later on expunged  by  the High Court on appeal.  As a result the order of 524 suspension  was set aside and Shri Nigam was  reinstated  in service in 1967. it appears, however, that even on  December 20,  1969,  the Secretary, Ministry of Home Affairs  of  the Central  Government, while ,glancing through  the  character roll of Shri Nigam found the aforesaid entry containing  the strictures. The  All  India  Services  Act,  1951  (No.   LXI  of  1951) regulates the       recruitment   and  the   conditions   of service  of  persons appointed to the  All  India  Services. Under  section 3 of that Act the Central  Government,  after consultation  with the Governments of the  States  concerned makes  rules  for  the regulation of  recruitment,  and  the conditions  of service of persons appointed to an All  India Service.   In  exercise of powers under sub-section  (1)  of section  3 of the said Act, the Central Government made  the AU  India  Services (Death-cum-Retirement  Benefits)  Rules, 1958.   Rule 16 of these Rules provides for  superannuation, gratuity  or, pension.  The normal age of retirement of  the officers  in  the  All  India  Service  (hereinafter  to  Se described  as  the Service) is 58 years as per  rule  16(1). Sub-rule  (2)  of  rule 16 provides that  a  member  of  the Service who has completed 30 years of qualifying service  or has attained the age of 55 years may, after giving at  least three  months’  previous  notice in  writing  to  the  State Government,  retire  from  the Service on  any  date  to  be specified  in the notice.  We may read sub-rule (3) of  rule 16 which is material for our purpose               "16(3)   :   The   Central   Government,    in               consultation  with the State  Government,  may               require  a  member  of  the  Service  who  has               completed  30 years of qualifying  service  or               who  has  attained  the age of  55  years,  to               retire in the public interest provided that at               least three months previous notice in  writing               will be given to the member concerned". Later by a notification dated July 16, 1969, the figures and words ". 5 5 years" in sub-rules (2) and (3) of rule 16 were substituted by the figures, and words "50 years". Since  sub-rule  (3)  of  rule.  16  does  not  contain  any guidelines   with   regard  to  premature   retirement   the Government of India, in the Ministry of Home Affairs  issued certain  instructions which are printed at page 596  of  the All India Services Manual (corrected upto 1.5.1967) which is published under the authority of the Government.   Paragraph 2 of those instructions reads as under               "With  a view to ensure all-,India  uniformity               of operation of this sub-rule [sub-rule (3) of               rule   161  and  also  to   ensure   equitable               treatment in all cases of premature retirement               the  Government  of India have laid  down  the               following   criteria  and  procedure   to   be               followed  by the State Governments etc.  while

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             referring  cases  to  the  Central  Government               under this [sub-rule (3) of rule 16]               (1)Six months before an officer attains the               age  of  55, his record  should  be  carefully               examined  by the State Government, or  if  the               officer is serving under the               525               Central Government by the Central  Government,               and  a provisional judgment formed whether  he               should  be retired on attaining the age of  55               years.               (2)   Where  the State Government come to  the               conclusion  a,,; a result of this  examination               that an officer should be retired  prematurely under Rule 16 (2) referred to above, they  may               make  a  proposal  according  to  the  Central               Government  with  a  full  indication  of  the               considerations and reasons for their proposal.               Where an officer is serving under the  Central               Government, the Central Government would  send               a  similar statement to the  State  Government               while inviting their views on the question  of               retiring the officer prematurely.  It is to be               hoped  that  this"  process  of   consultation               between the Central and the State  Governments               would be completed in each case in about three               months’   time  so  that  in  the   event   of               retirement  being  finally  decided  upon,   a               notice could be given to the officer concerned               at least three months before the date on which               be  is to attain the age of 55 years  and  his               retirement  thus given effect ,is soon  as  he               does so.               (3)      x               x                   x               x               (4)   In  a  case in which the State  and  the               Central  Governments have reasonable cause  to               believe   that  an  officer  is   lacking   in               integrity, it would be appropriate to consider               him for premature retirement, irrespective  of               an assessment of his ability of efficiency  in               work.  (5)       x    x    x    x  (6)  x         x    x    x               (7).  Once it is decided to retain an  officer               beyond  the  age  of 55 years,  he  should  be               allowed  to continue up to the age 58  without               any  fresh review unless this be justified  by               any  exceptional  reasons, such  as  his  sub-               sequent  work or conduct or the state  of  his               physical   health,  which  may  make   earlier               retirement clearly desirable.  The  Government               of  India feel that in order that  an  officer               who is cleared for continuance at the stage of               attaining the age of 55 years can settle  down               to another three years of work with a sense of               security  and those working under  him  accept               his   control  and  discipline   without   any               reservation  an  annual  review  between  ’the               years of 55 and 58 would not be desirable.  In               arriving at this view , they have among  other               factors taken into consideration the fact that               at these stages, members of all-India Services               generally  occupy very senior appointments  on               which  particularly such a sense  of  security

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             about their tenure is desirable in the  public               interest.  Further,               526               having  arrived at an assessment in favour  of               further  continuance in service at the age  of               54 years or so, there would ordinarily be  no               occasion  for changing the  assessment  during               the next three years,, so that an   annual               review would serve little practical purpose.   Finally,               in any case, sub-rule (3) of rule 16 of the AIS               (DCRB)   Rules   would   enable    appropriate               consideration at any time in very  exceptional               circumstances". On  September  5 1967, the Ministry of Home  Affairs  issued further  instructions  to the Chief Secretaries of  all  the State  Governments  (except  Nagaland) with  regard  to  the criteria  and procedure to be followed regarding  premature’ retirement  of the All India Service officers.  We may  read paragraph 2 of those instructions :               "  In clarification of and supplemental to the               previous  instructions  issued in  the  letter               quoted  above, the Government of  India  would               suggest   the  observance  of  the   following               criteria  and  procedure  for  the   aforesaid               purpose :--               (1)   A  review  should be conducted  twice  a               year  in            the month of  January  and               July   to   determine  the   suitability   for               continuance  of all officers who  will  attain               the age of 55 years in the half year beginning               with   the   following   July   and    January               respectively.            The  review  may   be               conducted by committees constituted as follows               x                     x                      x               x               (b)   In  the States, for I.A.S. Officers  the               Review  Committee  may consist  of  the  Chief               Secretary,  Member/  Senior   Member/Chairman,               Board   of  Revenue.  and  one  other   senior               officer."               x                     x                      x               x We  may also refer to a notification dated August 14,  1969, from  the Ministry of Home Affairs, Government of India,  to the  Chief  Secretaries of all the  State  Governments  with regard to the amendment to rule 16 for review of records  of officers at the age of 50 Paras 2 and 3 of this notification may be quoted               "2. 1 am to request that the State Governments               may kindly take steps to review the records of               all those All India Service officers, who have               already completed or who are about to complete               the  age of 50 in the next 6 months or so  and               are serving in connection with the affairs  of               the State....               3.    The,  criteria and procedure for  review               of  records  and  also service  of  notice  on               those, who are proposed to               527               be  retired  will be the same as  outlined  in               this  Ministry’s letter No.  29/67/66-AIS(11),               dated the 5th September, 1967.  This review at               the  age of 50 will be in addition to the  one                             contemplated later at the age of 55". It  is  in  pursuance  of sub-rule (3) of  rule  16  and  in

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consonance  with  the instructions set out  above  that  the State  Government  of  U.P. in October  1969  constituted  a Review Committee consisting of Shri H.  C. Gupta,  Chairman, Board of Revenue, Shri B. B. Lal, I. C. S., Chief  Secretary and  the  Member, Taxation Board of Revnue,  to  review  the records of the members of the Service who were to attain  or had  attained  the age of 50 years.  The  list  of  officers considered  by this Committee included the respondent,  Shri Nigam.  The Committee did not recommend any of the  officers including  Shri Nigam for premature retirement and,  on  the other  hand,  recommended that they should be  continued  in service.   The State Government accepted the report  of  the Review  Committee  and  communicated  its  decision  to  the Central  Government.  On December 20, 1969,  the  Secretary, Ministry   of  Home  Affairs  of  the  Central   Government, addressed a letter to the State Government as follows :-               "I have glanced through the character rolls of               the  I.A.S. Officers of Uttar  Pradesh  Cadre,               who have already reached the age of 50. 1 find               that there are certain adverse remarks in  the               character roll of Shri C. M. Nigam (IAS-1941).               A warning was administered to him on  December               6,  1958  for  taking undue  interest  in  the               ejectment of tenants from a house owned by him               at Lucknow.  Another warning was issued to him               on 31st August 1962 for having acquired a  car               from the Varanasi Corporation while working as               Administrator   of  the   Varanasi   Municipal               Corporation.  He was also once warned for  not               observing proper rules and procedure for utilising               the  fund  earmarked  for  low  income   group               housing    scheme towards the construction  of               a market. Later he was    also  placed   under               suspension in connection with some  strictures               passed  on him by the Election Tribunal  in  a               case  relating to the Gorakhpur  Parliamentary               Constituency elections.               (2)   In view of these, it appears to us  that               this is a fit case in which proposals for  his               premature  retirement under rule 16(3) of  the               All  India Services (DCRB) Rules, 1958  should               be  considered.  The State Government  however               have    not   recommended    his    compulsory               retirement.  We do not know if there were  any               particular reasons for taking a different view               or  whether  it was a case of  oversight.   We               would like to have the considered views of the               State  Government  before  Central  Government               come to a decision." On  January  29,  1970. the Chief  Secretary  to  the  State Government replied that the review Committee bad  considered the character roll 528 and  the merits of the case of Shri Nigam and found that  he was suitable for continuing in service, that the decision of the  Committee  was accepted by the  State  Government,  the State  Government’s decision in the matter was  taken  after thorough  consideration  and  that it did  not  consider  it necessary  to  go  into this  question  again.   No  adverse decision  contrary  to  the  recommendation  of  the,  State Government was communicated by the Central Government to the State  Government in pursuance of the recommendation of  the first Review Committee in October 1969. Next,  we,  find  that the State  Government  constituted  a second  Review  Committee  in May 1970  consisting  of  Shri

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Musaddi  Lal, Chief’ Secretary, Shri J. D.  ’Shukla,  Member Board of Revenue and Shri J.  B.  Tandon,  the   senior-most officer  of the Indian Administrative Service.  Before  this Committee  ’the case of all the officers who  had,  attained the age of 50 years including those whose cases had been re- viewed  earlier,  in  October 1969,  were  also  placed  for consideration.  Thus Shri Nigam’s case came to be considered again  by  the  second  Review  Committee.   This  time  the Committee  recommended  that two officers, one of  whom  was Shri  Nigam,  should  be  prematurely  retired.   The  State Government  having accepted this  recommendation;  forwarded the same to the Central Government.  The Central  Government asked  the State Government to send the proceedings  of  the Review  Committee.   On receipt of that report  the  Central Government agreed with the views of the State Government and passed  the impugned order of compulsory retirement  of  the respondent. It is submitted by the appellants that no decision was  made by   the   Government  of  India  after   receipt   of   the recommendation  of the State Government in October  1969  or even  after reiteration of the State Government’s  views  in January  1970.  Even the counsel for the State  conceded  in the High Court that only if the Central Government disagreed with  the  State Government a communication was  made.   The absence  of communication until the second Review  Committee goes to show that there was no adverse decision against  the respondent. As  we  have indicated earlier in the judgment  the  learned Solicitor  General, on behalf of the appellants,  emphasised before  us his objection to the question of principle  which was  relied  upon  by the Division Bench  for  quashing  the impugned order, that is to say, the principle applicable  to the case of preventive detention. We  have  no  hesitation  in  holding  that  the   principle governing the order of preventive detention evolved by  this Court having regard’ to the constitutional right of a person appertaining to effective representation aaginst such  order is  not applicable in the case of an order  for  compulsory retirement which casts no stigma on a Government servant and cannot  be equated with an order affecting his right by  way of disciplinary proceedings.  An order of compulsory retire- ment,  simpliciter,  under rule 16(3) does  not  affect  any right of the Government servant. 529 Under rule 16(2), a Government servant has a right to retire prematurely  by giving three months’ previous notice to  the Government.  Similarly under rule 16 (3), after a Government servant serves a period of 30 years or attains the age of 50 years,  he  cannot insist on a right to be retained  in  the service.   The Government may also exercise a  corresponding right under rule 16(3) to prematurely retire him at the  age of  50  or  55  after  giving  three  months’  notice.   Ins termination of service by way of premature retirement cannot be equated with a penal order of removal or dismissal.  Even so, an order of compulsory retirement may be challenged in a court if it is arbitrary or is actuated by. mala fides. Even  in  the  case  of an order of  dismissal.  by  way  of punishment if there, are several grounds on which the  order is  founded and one or two of those fail and the  order  can still  rest on the surviving ground or grounds disclosing  a prima facie case of guilt or misconduct, the same cannot  be held  to  be  invalid by applying  the  subjective  test  of preventive  detention (see State of Orissa  v.  Bidyabhushan Mahopatra). Bidyabhushan (supra) was a case of dismissal  of a Government servant for misconduct on several grounds,  two

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of which failed.  This Court, differing from the High  Court on the point held as follows:--               "If  the order of dismissal was based  on  the               findings on charges 1 (a) and- 1 (e) alone the               Court  would have jurisdiction to declare  the               order  of  dismissal  illegal  but  when   the               findings  of the Tribunal relating to the  two               out of five heads of the first charge and  the               second  charge  was  found not  liable  to  be               interfered  with by the High Court  and  those               findings  established that the respondent  was               prima  facie guilty of grave  delinquency,  in               our view the High Court had no power to direct               the Governor of Orissa to reconsider the order               of dismissal......               x                     x                      x               x                x               Therefore if the order may be supported on any               finding  as  to substantial  misdemeanour  for               which the punishment can lawfully be  imposed,               it  is not for the Court to  consider  whether               that ground alone would have weighed with  the               authority in dismissing the public servant". If  the above legal, position is true with regard to a  case of  dismissal of a Government servant who but for the  proof of misconduct would have a right to continue in the service, it will, a fortiori, hold good in the case of termination of service  by  way of compulsory retirement  under  the  rules where,  after  an employee’ has done a  specified  years  of service  or reached a specified age of reasonable  duration, his right to continue, as such, becomes again subject to his own  volition  under rule 16(2) or to exercise of  an  equal right by the Government to prematurely retire him under rule 16(3). (1) [1963] Supp.  1 S.C.R. 648. 10-930SCI/77 530 As stated earlier, even in the case of compulsory retirement under  rule 16(3), an order may be challenged in a court  if it  is arbitrary or mala fide.  If, however, the  Government reaches  a  decision  to  prematurely  retire  a  Government servant,   bona   fide,  the  order,  per  se,   cannot   be characterised as by way of punishment since it does not cast any stigma on the employee nor does the employee forfeit any benefit which he has already earned by his service, nor does it result in any civil consequences. The Division Bench took the view that since the "gravest" of the  reasons which was the order of suspension, became  non- existent and was still operating in the mind of the  Central Government, the impugned order could not be supported on the ground that the same was based on collateral  consideration, one  serious reason being absolutely non-existent  and  thus illusory. The  High Court is not correct that the order of  suspension which was pending enquiry was a punishment under the  rules. It  was not.  Therefore, the degree of gravity  attached  to the  order  by the High Court was  neither  appropriate  nor correct.   We are also unable to agree with the  High  Court that except one out of the several reasons,  on  which   the impugned  order was based, the entire order is liable to  be struck down as invalid. The test which has been laid down in the case of  preventive detention  is in the context of right to individual  liberty of a person which   is a fundamental right enshrined in  the Constitution. The Order of    compulsory    retirement    is

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passed in respect of a Government servant    who has  ceased to have a right, as such, to continue in Government    service under  the rules governing his employment. The analogy  with cases  under  the Preventive Detention  Act  is,  therefore, absolutely out      of  place.  The Division  Bench  is  not right in quashing the impugned     order  on  that  solitary ground. This would, however, not conclude the controversy before us. Mr. Yogeshwar Prasad appearing on behalf of the  respondent, dos  not  challenge  before us that the  impugned  order  is vitiated by    mala   fides.   Even  the   Division   Bench, differing from the learned    single  Judge,  found  against the plea of mala fides. We are, therefore,   relieved     of dealing with this plea. This  learned  single  Judge held the  instructions  of  the Ministry of    Home   Affairs  as  statutory  and  as   such binding, on a concession made      in the  counter-affidavit submitted before him by the Under Secretary  of          the Personnel  Department  (Cabinet Secretariat).  According  to counter-affidavit  these  instructions  were  made  by   the Government by  rule 2 of the All India Services  (Conditions of Service-Residuary     Matters)  Rules,  1960. It  is  not necessary to go into this aspect in     detail in this  case as to whether the instructions can be elevated If to     the status of statutory rules or even constitutional  directions as   found by the learned single Judge. it is sufficient for our purpose    that  these instructions do not  violate  any provision of the Act or of    the rules. Rule 16(3), being a rigorous rule vis-a-vis a Government 531 servant not himself willing to retire under rule 16(2),  has to  be invoked in a fair and reasonable manner.  Since  rule 16(3) itself does not contain any guidelines, directions  or criteria, the instructions issued by the Government  furnish an  essential  and  salutary procedure for  the  purpose  of securing  uniformity  in  application of  the  rule.   These instructions  really  fill  up  the  yawning  gaps  in   the provisions,  and are embedded in the conditions of  service. These  are binding on the Government and cannot be  violated to  the prejudice of the Government servant (see  also  Sant Ram Sharma v. State of Rajasthan & Anr(1) and Union of India v. K. P. Joseph and Ors.(2). Whether  all  the  aforesaid  instructions  issued  by   the Government  are mandatory or not do not call for a  decision in these appeals.  Some of them may not be mandatory.   Not- that  every syllable in the instructions is material.   Some of  them  may be described as prefatory  and  clarificatory. However,  one  condition  is absolutely  imperative  in  the instructions,  namely,  that  once a  Review  Committee  has considered   the  case  of  an  employee  and  the   Central Government  does not decide on the report of  the  Committee endorsed  by  the State Government to take  any  prejudicial action  against an officer, after receipt of the  report  of the committee endorsed by the State Government, there is  no warrant  for a second Review Committee under the  scheme  of rule  16(3) read with the instructions to reassess his  case on  the  same  materials  unless  exceptional  circumstances emerge  in the meantime or when the next stage arrives.   We should hasten to add that when integrity of an officer is in question that will be an exceptional circumstance for  which orders may be passed in respect of such a person under  rule 16(3),  at  any time, if other conditions of that  rule  are fulfilled,  apart  from the choice  of  disciplinary  action which  will  also be open to Government.  Although  a  faint attempt was made before the learned single Judge that  fresh

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facts  were available for the purpose of the  second  Review Committee, the High Court did not accept the position nor do we  find  any reason to differ from that  opinion.   It  is, therefore, clear that the respondent’s order of  termination was  made not as a result of the report of the first  Review Committee  in  accordance with the instructions but  on  the recommendation  of the second Review Committee  which  could not  have  taken up his cage, as it was,  on  the  self-same materials prior to his reaching the age of 55 years. We  find  from  the instructions that  reviews  have  to  be conducted twice in the career of a Government servant,  once six  months prior to his attaining the age of 50  years  and again six months prior to his attaining the age of 55 years. Since the amendment introducing the age of 50 years came  in August  1969, after the respondent had already  attained  50 years,  the first review in his case could be held  only  in October 1969.  The  second Committee sat in May  1970  after the first Committee had  recommended the continuance of  the respondent in service in October 1969 which was agreed to by the  State Government and even reiterated by it on  a  query from the Central Government in January 1970.  If the Central Government  did not choose to decide against the  respondent then, the second Review Committee of May (1) [1968] 1 S.C.R. III. (2) [1973] 2 S.C.R.752. 532 1970 could not again consider the case of the respondent  in the usual course and under normal circumstances when he  was not  even  53  years  of age  after  having  already  got  a clearance from the first Review Committee which was endorsed by  the, State Government only four months earlier.  It  was open  to  the Central Government to differ  from  the  State Government’s views.  But it did not.  We must make it clear that  the decision would have been entirely different if  we were satisfied that there were exceptional circumstances  of any kind to reopen the case of the respondent. The correct position that emerges from rule 16(3) read  with the procedural instructions is that the Central  Government, after   consultation   with  the   State   Government,   may prematurely  retire  a  civil  servant  with  three  months’ previous notice prior to his attaining 50 years or 55 years, as  the case may be.  The only exception is of  those  cases which had to be examined for the first time after  amendment of  the  rule  substituting  50  years  for  55  where  even officers,  who had crossed the age of 50 years, even  before reasoning 55, could be for the first time reviewed.  Once  a review  has  taken place and no decision to retire  on  that review has been ordered by the Central Government, the offi- cer  gets  a  lease in the case of 50 years  upto  the  next barrier at 55 and, if he is again cleared at that point,  he is free and untrammelled upto 58 which is his usual span  of the service career.  This is the normal rule subject  always to  exceptional  circumstances such as disclosure  of  fresh objectionable grounds with regard to integrity or some other reasonably weighty reason. Under  Article 310, Government servants, high or  low,  hold service during the pleasure of the President or the Governor as the case may be., subject to two well-known  limitations, namely,  that they shall not be dismissed or removed  by  an authority  subordinate to that by which they were  appointed and secondly, that they shall not be dismissed or removed or reduced  in  rank except after an enquiry into  the  charges clearly  levelled  against them and affording  a  reasonable opportunity  of being, heard in respect of the charges.   We need not refer to the proviso to Article 311(2) which  deals

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with certain exceptional cases. Thus the pleasure doctrine under Article 310 is  conditioned by  constitutional  restrictions under Article 31  1.  Under Article  309  the appropriate legislature may  regulate  the recruitment and conditions of service and until so done, the President  or his delegate and the Governor or his  delegate may make rules regulating the recruitment and conditions  of service.  The Act passed by the appropriate legislature  and the  rules made under Article 309 will. however, be  subject to the provisions of the Constitution which include Article 311 and certainly the Fundamental rights. The  pleasure  doctrine  under  Article  310  is  in  a  way unoffendingly  resuscitated with appropriate vigour  towards the  tail  end of the career of a Government  servant  under rule  16(3)  in the puublic interest  Compulsory  retirement under  the  service rules is not by way  of  punishment,  as understood in service jurisprudence, however, unsavoury it 533 may  be otherwise.  During the entire tenure  of  Government servants   from  the  date  of  temporary  or   probationary appointment till termination or retirement, as the case  may be,  there  is  an  undoubted  security  for  them   against dismissal,  removal  or  reduction in rank  except  in  the, manner  laid down under Article 311(2), read  with  relevant laws or rules made under Article 309. In  order to pass the test of constitutionality, rule  16(3) must   needs   be  safeguarded  by   reasonable   procedural guidelines   in  order  that  here  may  be  no  scope   for arbitrariness  or discrimination.  That is how  rule  16(3), being silent, instructions speak and do vitative service  in a   vacuous  field.   The  material  procedure   under   the instructions,  as  if interwoven in rule 16(3)., can  on  no account be held invalid or impermissible. Compulsory  retirement  under  rule  16(3)  is  a   salutary safeguard  in the armoury of the Government for  maintenance of  the  services  in trim and fitness.   Rule  16(3)  is  a constant  reminder  to  the slacker, the  sluggish  and  the inefficient,  not to speak of those who may be dishonest  or unscrupulous   by  reputation  beyond  redemption.    At   a reasonable  point  of service a stage is  reached  when  the Government  reserves  its undoubted right to have  a  second look  at the officers whether their retention in  employment would be useful in the public interest.  That is the role of rule 16(3).  Rule 16(3), with the instructions, is a warning poster  for  every  Government servant  to  conduct  himself properly, diligently and efficiently throughout his  service career.   The Government has advanced the time of the  first review by amendment of rule 16(3).  As stated earlier, there are  now two stages in a service career, namely, at the  age of  50  and  55, for the Government to take  a  decision  to refurbish,  invigorate  and stimulate the Service  and  with that sole object a decision has’ to be fairly taken well  in time  under  rule  16(3) in accordance  with  the  published procedure. While  purity in administration is certainly to be  desired, the  security  and  morale of the Service have  also  to  be maintained.  It is because of these high considerations that the   Government  has  issued  appropriate  and   reasonable instructions to guide the authorities in. passing orders for premature  retirement.  The instructions clearly  show  that "having  arrived at an assessment in favour of further  con- tinuance  in  service at the age of 541 years or  so,  there would ordinarily be no occasion for changing the  assessment during the next three years, so that an annual review  would serve little practical purpose".  The principle behind  this

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instruction is that the sword of Damocles must not bang over the officer every six months after he attains the age of  50 years. The  learned Solicitor General next submitted that the  High Court was not right in going behind the order of  compulsory retirement  and delving into the files of the Government  to see  for  itself whether the order could be  sustained.   We find that the records of service of the respondent and other papers were produced by the learned Advocate General  before the  High Court without any objection and  without  claiming any privilege with regard to those documents.  That being 534 the  factual  position,  we are  not  inclined  to  consider whether the course adopted by the High Court in this case is open  to objection.  It will, however, be proper to  observe that when an order of compulsory retirement is challenged as arbitrary  or  mala  fide  by  making  clear  and   specific allegations,  it  will then be certainly necessary  for  the Government  to produce all the necessary materials to  rebut such  pleas  to satisfy the court by  voluntarily  producing such documents-as will be a complete answer to the plea.  It will  be for the Government also to decide whether  at  that stage  privilege  should  be  claimed  with  regard  to  any particular  document.  Ordinarily, the service record  of  a Government servant in a proceeding of this nature cannot  be said to be privileged document which should be shut out from inspection. The impugned order of compulsory retirement, as found above, was  made  on  the  recommendation  of  the  second   Review Committee  and  that is in the teeth of  the  conditions  of service  flowing from the instructions of the Home  Ministry and hence cannot be sustained.  The High Court was right  in quashing the said order. In the result both the appeals are dismissed although not on the  ground  stated by the High Court.   The  respondent  is entitled  to  one  set of costs to be  shared  by  both  the appellants. M.R. Appeals dismissed. 535