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PETITIONER: MEGHRAJ URKUDAJI TEMPLE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       10/08/1998

BENCH: S.C. AGARWAL, M. SRINIVASAN, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T MISRA, J.      The appellant  has challenged  the impugned  Government Notice dated  23rd January, 1989 under Rule 10(4) (a) (i) of the  Maharashtra   Civil  Services   (Pension)  Rules   1982 (hereinafter  referred   to  as  ’Pension  Rules’)  for  his premature retirement  from Government  service. The  present appeal is  filed against the judgement dated 29th June, 1992 passed by  the Maharashtra Administrative Tribunal at Bombay by which the appellant’s petition for quashing the aforesaid notice was dismissed.      Rule 10 of the Pension Rules empowers the Government to prematurely retire  a Government  to  prematurely  retire  a Government  servant   in  public   interest.   Criteria   or guidelines for  such retirement  are not spelt out under the Rule  but  are  expressed  under  the  Circulars  dated  2nd September, 1977,  1st September,  1983 and  12th May,  1986. Prior to  the aforesaid  Notice dated  23rd  January,  1989, Special Review  Committee considered  the  appellant’s  case along with  his confidential  record for the period of seven years ending  1986-87 in the light of the criteria laid down in the  criteria laid  down in  the Circular dated 12th May, 1986. In terms of the said Rule the appellant has challenged the impugned notice mainly on the ground that Circular dated 12th May,  1986  is  not  applicable  to  his  case  instead Circular dated  1st September,  1983  is  applicable,  under which there  is no  provision for a second review and review is only  permissible before one reaches the age of 50 years. In this  case this  having not been done, it would be deemed to  have  been  approved.  Hence,  subsequent  review  after crossing the  age of  50 years  would constitute  to be  the second review  which is  barred by  the Circular  dated  1st September, 1983.  He further  submits even  if the aforesaid 1986 circular  is applicable,  he having  been  promoted  as Depute Superintendent  Engineer from  the post  of Executive Engineer after 1986, which is a promotional post any adverse document would  be deemed  to have  been wiped  off. For all these reasons, the impugned Notice is liable to be quashed.      In order  to appreciate  the point  it is  necessary to refer to some essential facts.

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    The  appellants   was  born  on  11th  May,  1935  thus completed the age of 49 years on 11th May, 1984 and attained the age  of 50 years on 11th May, 1985. it is not in dispute appellant joined his services in the Public Works Department prior to his age of 35 years. He was promoted to the post of Deputy Engineer  in 1973  and further  promoted as Executive Engineer in  1981. The  appellant’s case is the continued in service beyond  the age  of 50  years. it  is on these facts submission is  as per  requirement of the aforesaid circular of 1983  which requires  review  of  a  case  prior  to  one attaining the age of 50 years and that not having been done, and he continued even after this, it would be deemed to have been reviewed for approval. With reference to 1983 circular, it is  submitted there  is no provision for a second review, on the  contrary it  specifically records  only  one  single review should  be undertaken  in respect  of Class  I and II Gazetted Officers, who have entered into services before the age of  35 years  and about  to reach the age of 50 years or completed 30 years qualified service whichever is earlier to which class  appellant belongs.  It further records a second review at  the age  of 55  years should  not be  taken as  a matter of course. However, Government reserves it s right to review the  case of  any such  officer at any time after the initial review  based on  his subsequent work and conduct or physical  or   mental  health   which  may   make  premature retirement  clearly  desirable.  In  the  present  case  the contention rightly  is that  we are not concerned about this part of  the circular. In he nut shell submission in when he continued in  service even  after attaining  the age  of  50 years there  would not  arise any premature retirement under 1983 circular  it can only be by a later review on a limited ground  which  is  referred  in  the  latter  part  of  this circular, which is not applicable to the appellant’s case.      It is  also submitted  even if  it could be said second review was permissible the criteria for retention in service ought  to  have  been  that  which  prevailed  at  the  time appellant reached  his 50th  year that  would be  admittedly ’not below  average’ as set out in Government Circular dated 1st September,  1983. Hence,  the Review Committee fell into error in  applying the standard as set in the Circular dated 12th May,  1986, to be ’not below good’. Thus if standard as set in  the circular  dated 1st  September, 1983 is applied, the appellant  was  qualified  for  promotion.  As  per  the Tribunal’s order the review of appellant’s case was taken on 9th June, 1987.      On the  other hand case of the Respondent-State is that prior to  the impugned  notice dated 30th January, 1989, the Special  Review   Committee  considered   the  case  of  the appellant along  with the confidential record for the period of seven  years ending  1986-87 in the light of the criteria as laid  down as per the Government circular dated 12th May, 1986. The  said Committee  came to  the conclusion  that his record is  on the  whole less  than good, hence, recommended for  compulsory   retirement  of  the  appellant.  The  said recommendation has  also been accepted by the Government and he has  been ordered to be retired prematurely. However, the Government decision  to retire  the appellant prematurely is based on  the overall  performance for the relevant years in question.      The Bench hearing this petition earlier was prima facie inclined to  accept the  contention for the appellant but in view of  the decision in case SuryaKant Govind Oke vs. State of Maharashtra  (1995 Suppl.  (2) SCC  420) in  which it was held that  even if  an Officer’s  case has not been reviewed before he  crossed the  age of  50 years,  his case  can  be

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reviewed under  Circular dated 12th May, 1986 read with Rule 10 (4) (a) (i) of the aforesaid Rule. This led for this case being referred  to a larger Bench by means of an order dated 13th May, 1998. This is how this case is placed before us.      The  case   of  SuryaKant   Govind  Oke  (Supra)  while considering the  case with  reference to  the Circular dated 12th May,  1986 recorded  that the  said Circular  took into account the  earlier Circular dated 2nd September, 1977, 1st September, 1983 and 30th November, 1984, held:      Para 8: " A conjoint reading of the      above two  paras  of  the  circular      show that  the cases  of government      servants, Class  I gazetted, may be      reviewed once  an  the  review  may      take place  at the  age of  ’50-55’      years. Undoubtedly  in  this  Case,      review has taken place at he age of      55 in  so far  as the  appellant is      concerned. We  are not persuaded to      accept the argument that when there      was  to  first  review  before  the      employee  reached  the  age  of  50      years there  could be  no review at      the age of 55, to determine whether      the   employee   deserved   to   be      continued in service. The Rules and      the Circular  do not  prohibit  the      review at the age of 55."      However, the case later was decided on the basis of the facts of that case based on the relevant service records. In fact learned  counsel for  the appellant  submitted, in case his submission  on the  applicability of  Circular dated 1st September, 1983  is not  accepted then Court may examine the appellant’s service  records as  was done  in  the  case  of SuryaKant Govind Oke (Supra).      We have  heard  learned  counsel  for  the  parties  at length.  We   have  scrutinised   the  Circular   dated  1st September, 1983.  Firstly, there is nothing in it to be read as  deemed   review  in  case  any  officer’s  case  is  not considered before he crosses the age of 50 years. It is true the said  Circulars refers  to a  review of  any officer  of Class I  and II  only once,  but this  would  not  lend  any support to  the appellant as nothing is brought before us to show that  any review  was ever  made earlier  to debar  the review in  question to  construe it  to be second review. In fact the aforesaid review by the Special Review Committee on 9th June,  1987  was  the  first  review  exercised  by  the respondent in  respect of  the appellant’s case. This apart, even if we accept appellant’s interpretation the same stands dissolved in  view of para 3 of the Circular dated 12th May, 1986 which is quoted thereunder:      3.  "Those   Govt.  Servants  whose      review s  have  not  been  done  on      their attaining  the age  of  50/55      years and  those whose procedure as      stated in  a, b  and c  hereinabove      will be followed."      This makes  it absolutely  clear  in  respect  of  such Government servant whose case has not been reviewed on their attaining the  age of  50/55, is to be done in terms of this para. As  we have  already recorded there was no review done by the  Respondent-State, no  review done by the Respondent- State, admittedly,  even according  to the appellant, before he reached the age of 50 years. Hence, review is permissible under this para which totally discards the interpretation of

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learned counsel  for the  appellant based on the circular of 1983.      We further  do not find any merit in the submission for the appellant that the special Review Committee at the point of Consideration  of case  of  appellant  should  have  only considered the  standard as  set out  in the  circular dated 23rd January,  1983  as  that  was  the  Circular  when  the appellant attained the age of 50 years. Admittedly, when the Special Review Committee examined the case of the appellant, as aforesaid,  on 9th  June, 1987,  the Circular  dated 12th May, 1986 was in existence. In fact para 3 of this  Circular has empowered  the authority  to review  all such  cases, to which the  appellant falls,  whose review was not undertaken earlier. These  circulars are  in fact procedural in nature. Whenever any  case is  reviewed all or any such circulars in force,  at   that  point  of  time  whenever  that  case  is considered,  such  circulars  would  be  applicable,  unless barred by  it or  any other  law in  force, which is not the case here.  IN fact  even the 1983 Circular’s latter part as aforesaid empowers  Government to  prematurely retire on any materials coming  under it  scrutiny subsequently.  Thus the special Review  Committee rightly  tested  the  appellants’s case on  the standard, ’not below good’ as per 1986 Circular which was  in force  at that  relevant time  and not  on the standard as set out in the 1983 Circular, namely, ’not below average’ so  we have  no hesitation to hold that appellant’s case is covered by the Circular dated 12th May, 1986 and the authority rightly  tested his  case on  the standard of ’not below good’ . It is not in dispute in this case, on the test of this  standards, for  the relevant years in question, the appellant would not qualify.      Lastly, learned  counsel for the appellant submitted in any case  the consideration  based on  the standard  on 1986 Circular in  case any  material adverse  existed would stand erased  so   far  the  appellant  is  concerned,  since  the appellant was promoted from the pst of Executive Engineer to the post  of Deputy  Superintendent  Engineer.  reliance  is placed on  the letter  of the  impugned  Notice  dated  23rd January, 1989 itself describing him as Deputy Superintendent Engineer. When  we asked  the learned  counsel to  place any material of  his taking  this ground before any Authority or before the  High Court,  he was unable to point the same. We do not  find  even  such  a  ground  in  the  Special  Leave Petition.  Even  otherwise  we  find  mere  description,  as aforesaid, as  such, firstly  in the absence of any details, whether Deputy  Superintendent Engineers  a promotional post or an  equivalent post,  it is  not possible  to hold he was promoted as  such. No  inference could  possibly be drawn on the basis of describing him to be as such in the said letter This apart  we find  in an  affidavit filed  before the High Court by  Vital Baburao  Brahmakeshatriay, an officer of the Public Works Department sworn on 17th April, 1989 that is to say, subsequent to the said Notice dated 23rd January, 1989, where he was described as Deputy Superintendent Engineer, in para 1  of this affidavit he is described to be working only as Executive  Engineer in  the Public Works Department. This affidavit clearly  negatives the contention of the appellant that as on 23rd January, 1989  he was promoted to the higher post of Deputy Superintendent Engineer.      In view  of the  aforesaid findings  we do not find any merit in the appeal and it is accordingly dismissed as such. However, on the facts and circumstances of the case, cost on the parties.

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