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PETITIONER: SUKHDEO

       Vs.

RESPONDENT: THE COMMISSIONER AMRAVATI DIVISION, AMRAVATI & ANR.

DATE OF JUDGMENT:       02/05/1996

BENCH: K. RAMASWAMY, G.B. PATTNAIK

ACT:

HEADNOTE:

JUDGMENT:                   THE 2ND DAY OF MAY, 1996 Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice G.B.Pattanaik V.A. Bobde,  Sr. Adv.,  S.D. Mudaliar  and U.U. Lalit, Advs. with him for the appellant S.M. Jadhav. Adv. for the Respondents.                          O R D E R      The following Order of the Court was delivered:      Leave granted,      We have heard the counsel on both sides. This appeal by special leave  arises from an order of compulsory retirement of the  appellant dated  March 23,  1990 made in exercise of Rule 65(1)  (b) of  the Maharashtra Civil Services (Pension) Rules, 1982. The appellant had completed 30 years of service in Class  III service  but he  had not completed 55 years of age. The  Government relying upon the adverse remarks in the reports for  the years  1987-88 and  1988-89  exercised  the above  power  to  compulsorily  retire  the  appellant  from service. When he impugned the order in a writ petition which was   subsequently    transferred   to    the    Maharashtra Administrative Tribunal  at Nagpur Bench at TA No. 198/92 by order dated  April 20,  1993,  the  Tribunal  dismissed  the application. Thus this appeal by special leave.      The Government  preserved power under Rule 10(4) (b) to retire Government Servant which reads thus:      "any Government Servant who holds a      post in  Class III  service of  the      State, either  pensionable or  non-      pensionable, after  he has attained      the age of fifty five years."      The object  of the compulsory retirement is to see that the  inefficient  and  corrupt  persons  but  no  sufficient evidence was available to dismiss or remove him from service after enquiry,  are weeded  out from  service with a view to secure efficiency  in public  service and to maintain honest and integrity  among the service personnel. The question is: whether the  respondents have  exercised the  said power  to serve the  above public  purpose? Rule  65 (1)(b)  reads  as under:

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    "65. Retirement on completion of 30      years qualifying service.      (1) At  any time after a Government      servant has completed thirty years’      qualifying service,  he may  retire      from service, or he may be required      by  the   appointing  authority  to      retire in the public interest.      Provided that.......      (a) a Government servant shall give      a  notice   in   writing   to   the      appointing authority at least three      months before  the date on which he      wishes to retire; or      (b) the  appointing authority shall      give  a  notice  in  writing  to  a      Government servant  at least  three      months before  the date on which he      is required to retire in the public      interest, or  three months  pay and      allowances in lieu of such notice.      It is  seen that  when the  compulsory  retirement  was sought to  be made under Rule 65(1)(b) as indicated earlier, the Government  exercise the  power only for public purpose, namely, to  augment efficiency  in public  service. We  have called for  the record  and the  same has been placed before us. The  entries for  the years  1987-88  and  same  remarks verbatim repeated  for 1988-89  by the  same  officer  would indicate that  the appellant  is an  "industrious" man, "his capacity to  get work  done by  subordinates is  good";  his "relationship with  the colleagues  and the public is good"; general intelligence  is  "satisfactory".  However,  in  the column on technical ability (where relevant), is reported as "not   satisfactory",    "special   attitude    is    good", "administrative ability  including judgment,  initiative and drive-not satisfactory", "integrity and character are good", fit to  continue in service, "fit for promotion, if due" and general  assessment;   "irregular,  rarely   found  at  Head quarter, poor  performance in a recovery work, bad in public image".  On  the  basis  of  this  last  remark  of  general assessment, notice  was given to him and he was compulsorily retired from service on that basis. The question is; whether the said  exercise of  power, as has been stated earlier, is in the  public interest  and whether  the appellant  is  not found to augment the efficiency in the service.      In view  of the  above remarks made by the officer, the conclusion reached  is obviously  incorrect and it is not in public interest.  A man  does  not  become  poor  in  public interest. A  man does  not become  poor in public image when his relationship  with the  public and  subordinates is good and he  is a man of integrity and honesty and he has got the intelligence satisfactory  in discharging  of his duties and fit  for  promotion.  How  can  in  such  circumstances  his performance would  be unsatisfactory  when he  is capable to coordinate with  subordinates and get the work done. How his technical ability  is  not  satisfactory.  The  remarks  are mutually inconsistent  and reasons  are self-evident of lack of  bonafides   in  making   these  remarks.   Under   these circumstances, it  could be  characterised that  the remarks were not  bona fide  made in  public interest  but  a  self- serving statement to weed him out from service.      It is  settled law  that when the Government resorts to compulsorily retire  a Government servant, the entire record of service,  particularly, in  the last  period  of  service required to  be closely  scrutinised and  the power would be

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reasonably  exercised.  In  State  Bank  of  India  etc.  v. Kashinath Kher  & Ors.  etc. [JT 1996 (2) SC 569 at 578 para 15], this  Court has held that the controlling officer while writing confidential and character role report, he should be a superior  officer higher  above the  cadres of the officer whose confidential  reports are written. Such officer should show objectivity,  impartiality and  fair assessment without any   prejudice    whatsoever   with    highest   sense   of responsibility to  inculcate in  the officer’s  devotion  to duty, honesty  and integrity  so as to improve excellence of the individual  officer. Lest  the officers  get demoralised which would be deleterious to the efficacy and efficiency of public service.  In  that  case  it  was  pointed  out  that confidential reports written and submitted by the Officer of the same  cadre and adopted without any independent scrutiny and assessment  by the  committee was held to be illegal. In this case,  the power  exercised is  illegal and  it is  not expected of  from that high responsible officer who made the remarks. When an officer makes the remarks he must eschew of making vague  remarks causing jeopardy to the service of the subordinate officer.  He must  bestow careful  attention  to collect  all  correct  and  truthful  information  and  give necessary particulars  when he seeks to make adverse remarks against the  subordinate officer  whose career  prospect and service were  in jeopardy.  In this  case,  the  controlling officer has  not used  due diligence  in making  remarks. It would  be  salutory  that  the  controlling  officer  before writing  adverse   remarks  would   give  prior   sufficient opportunity in writing by informing him of the deficiency he noticed for  improvement. In  spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks.  It should  also be  mentioned that  he had given prior  opportunity in  waiting for improvement and yet was not availed of so that it would form part of the record. The power  exercised by  the controlling  officer is  per se illegal. The  Tribunal has not considered this aspect of the matter in dismissing the petition. The appellant is entitled to reinstatement with all consequential benefits. The appeal is accordingly  allowed with  exemplary costs  quantified at Rs. 10,000/-  recoverable by  the State from the officer who made the remarks.