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Delhi High Court
Ajay Kumar Sharma vs The Commissioner South Delhi Municipal … on 28 May, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22 November 2024
Pronounced on: 28 May 2025
+ WP (C) 1823/2021
AJAY KUMAR SHARMA ....Petitioner
Through: Mr. Mohinder J S Rupal,
Advocate
versus
THE COMMISSIONER, SOUTH DELHI
MUNICIPAL CORPORATION & ANR .....Respondents
Through: Ms. Sriparna Chatterjee,
Standing Counsel for MCD
+ WP (C) 6590/2021 & CM APPL. 20657/2021
S.K. CHAUHAN ... Petitioner
Through: Mr. Sanjiv K. Jha & Mr. Sachin
Bhatt, Advs
versus
NORTH DELHI MUNICIPAL CORPORATION...Respondents
Through: Ms. Sriparna Chatterjee,
Standing Counsel for MCD
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
% 28.05.2025 Signature Not Verified WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT Page 1 of 91 KUMAR Signing Date:28.05.2025 14:21:55 C. HARI SHANKAR, J.
1. These writ petitions involve a similar challenge, and were
argued together. They are, therefore, being decided by this common
judgment.
WP (C) 1823/2021 [Ajay Kumar Sharma v Commissioner, SDMC &
anr]
The lis
2. The petitioner Ajay Kumar Sharma approached the Central
Administrative Tribunal1 by way of OA 238/2020, challenging Office
Orders dated 13 September 2019 and 13 December 2019 issued by the
office of the Additional Commissioner (Engg.), South Delhi
Municipal Corporation2. By the first Office Order dated 13 September
2019, the petitioner was compulsorily retired from service under FR
56(j)3 read with Rule 48(1)(b)4 of the Central Civil Services (Pension)
Rules, 19725. The representation preferred by the petitioner seeking
review of the said decision was rejected by the second Office Order
1 “the Tribunal”, hereinafter
2 “the SDMC”, hereinafter
3 (j) The Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have
the absolute right to retire any Government servant by giving him notice of not less than three months in
writing or three months’ pay and allowances in lieu of such notice:-
(a) if he is in Group ‘A’ or Group ‘B’ service or post in a substantive, quasi-permanent or
temporary capacity and had entered Government service before attaining the age of 35 years, after
he has attained the age of 50 years;
(b) in any other case after he has attained the age of 55 years.
4 48. Retirement on completion of 30 years’ qualifying service –
(1) Any time after a Government servant has completed thirty years’ qualifying service –
*****
(b) he may be required by the appointing authority to retire in the public interest,
and in the case of such retirement the Government servant shall be entitled to a retiring
pension:
5 “CCS(Pension) Rules”, hereinafter
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dated 13 December 2019.
3. The petitioner, therefore, prayed that the aforesaid Office
Orders compulsorily retiring him from service and rejecting the
representation preferred by him thereagainst be set aside and he be
reinstated in service with all consequential benefits.
4. Case of petitioner before the Tribunal in the OA
4.1 Before the Tribunal, the petitioner contended thus.
4.2 Having joined the services of the Municipal Corporation of
Delhi6 prior to its trifurcation in 1993, the petitioner was promoted as
Assistant Engineer7 on ad hoc basis on 23 July 2009. Consequent on
trifurcation of the MCD in 2012, the services of the petitioner were
assigned to the SDMC. The petitioner had therefore completed 26
years of service. The overall grading assigned to the petitioner in his
Annual Confidential Reports throughout the 26 years of his service
were either ‘very good’ or ‘outstanding’.
4.3 During the course of his service career, the petitioner was
visited with two charge-sheets which culminated in punishment orders
of stoppage of two increments for two years with future effect, issued
on 8 June 2007, and reduction to lower scale in the time scale of pay
by one stage for a period of two years with cumulative effect, issued
on 11 June 2019. An appeal against the latter punishment had been
6 “the MCD”, hereinafter
7 “AE” hereinafter
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preferred by the petitioner before the Hon’ble Lieutenant Governor8 as
the appellate authority.
4.4 On 3 July 2019, the Hon’ble LG wrote to the Commissioner,
SDMC, with respect to removal of corruption in Government
functioning. Following this, the Central Establishment Department in
the SDMC issued Circular dated 26 July 2019. The said circular noted
the importance of FR 56(j) and Rule 48 of the CCS (Pension) Rules as
important administrative tools to weed out the “dead wood” and “dark
sheep”. All Supervisory Officers in the SDMC, including Additional
Commissioners, Deputy Commissioners, Heads of Departments and
Cadre Controlling Authorities were requested to take requisite steps
under FR 56(j) and Rule 48 of the CCS (Pension) Rules and to send an
Action Taken Report within a month. The officers were directed to
review the cases of the officers who had joined service before the age
of 35 years and had attained the age of 50 years in the case of
Category A and B officers and 55 years in the case of Category C and
D officers and, in terms of Rule 48(i)(b) of the CCS (Pension) Rules,
to review the cases of all categories of Government servants, who had
completed 30 years of qualifying service. Para 2 of the Circular noted
that if the contract of a Government employee became unbecoming to
public interest or obstructed efficiency in public service, the
Government had an absolute right to compulsorily retire such an
employee in public interest. The circular also sets out the criteria to be
followed by the Committee while considering the case of such
officers, thus :
8 “the Hon’ble LG”, hereinafter
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“5. The criteria to be followed by the Committee in asking their
recommendations would be as follows:
(a) Government employees whose integrity is doubtful
will be retired.
(b) Government employees who are found to be
ineffective will also be retired. The basic consideration in
identifying such employee should be the
fitness/competence of the employee to continue in the post
which he/she is holding.
(c) While the entire service record of an Officer should
be considered at the time of review, no employee should
ordinarily be retired on grounds of ineffectiveness if his
service during the preceding 5 years or where he has been
promoted to a higher post during that 5 year period, his
service in the highest post has been found satisfactory.
Consideration is ordinarily to be confined to the preceding
5 years or the period in the higher post, in case of
promotion within the period of 5 years, only when
retirement is sought to be made on grounds of
ineffectiveness. There is no such stipulation, however,
where the employee is to be retired on grounds of doubtful
integrity.
(d) No employee should ordinarily be retired on ground
of ineffectiveness if, in any event, he would be retiring on
superannuation within a period of one year from the date of
consideration of his case. Ordinarily no employee should be
retired on grounds of ineffectiveness if he is retiring on
superannuation within a period of one year from the date of
consideration of the case. It is clarified that in a case where
there is a sudden and step fall in the competence, efficiency
or effectiveness of an officer, it would be open to review
his case for premature retirement. The above instruction is
relevant only when an employee is proposed to be retired
on the ground of ineffectiveness, but not on the ground of
doubtful integrity. The damage to public interest cold be
marginal if an old employee, in the last year of service is
found ineffective, but the damage may be incalculable if he
is found corrupt and demands or obtains illegal gratification
during the said period for the tasks he is duty bound to
perform.”
Additionally, para 7 of the Circular noted the guidelines to be
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followed while exercising jurisdiction under FR 56(j) or Rule 48 of
the CCS (Pension) Rules, as per Office Memoranda9 dated 21 March
2014 and 11 September 2015 issued by the Department of Personnel
& Training10 :
“7. As per DoPT OM dated 11.09.2015 the Cadre Controlling
Authority will constitute Review Committee consisting of two
members at appropriate level in terms of DOPT OMs dated
21.03.2014and 11.09.2015 on periodical review under FR 56 or
Rule 48 of CCS (Pensions) Rules, review of officers is broadly
covered under the following guidelines:
a) If service of an officer in not useful one can be
compulsorily retired in public.
b) Review in after having de regard to the entire
service record of the officers vz. ACR/PAR dossier,
personal file work and performance of the officer in
files/reports prepared.
c) Adverse entries including un-communicated entries
in CRs should be taken note of and give due weightage.
d) Integrity: Actions/decisions which do not appear to
be above board, complaints received suspicious property
transactions not sufficient evidence to initiate departmental
proceedings.
e) Conduct unbecoming to the public interest or
obstructs efficiency in public services.
f) Not a short cut to avoid disciplinary proceedings
and should not be resorted to as a punitive measure.
g) Promotion despite adverse entries in ACRs is a fact
in favour of the Officer.
h) In cases of officers promoted during the last 5 years,
the previous entries in ACRs may be taken into account if
the officer was promoted on non-selection and not on
selection.
9 “OMs” hereinafter
10 “DOPT” hereinafter
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i) While considering integrity, action and decisions of
the officer which do not appear above board, complaints
received against him suspicious property transactions for
which there may not be sufficient evidence to initiate
disciplinary proceedings may be taken into account.
j) Reports of conduct unbecoming of a Govt. servant
may also form a basis for compulsory retirement.”
4.5 The Committee constituted by the aforesaid Circular dated 26
July 2019 apparently considered the case of the petitioner for
compulsorily retirement under FR 56(j) read with Rule 48 of the CCS
(Pension) Rules, which resulted in the passing of the following Office
Order dated 13 September 2019, compulsorily retiring the petitioner
from service:
“SOUTH DELHI MUNICIPAL CORPORATION
OFFCE OF THE ADDITIONAL COMMISSIONER
6TH FLOOR, DR. S.P. MUKHERJEE CIVIC CENTRE
J.L. NEHRU MARG, MINTO ROAD, NEW DELHI – 110002.
No. D-179/ADDL. COM/SDMC/2019 dated: 13.09.2019.
OFFICE ORDER
Whereas a Committee has been constituted to ensure
probity of Government Servants and strengthening of
Administration by undertaking periodic review of all categories of
Govt. servants under FR 56 (j) and Rule 48 of CCS (Pension)
Rules, 1972 as applicable to the employees of a Corporation.
And whereas the Committee constituted for the above
purpose has recommended Shri Ajay Kumar Sharma S/o Shri J.P.
Sharma, Assistant Engineer (Civil) to consider his compulsory
retirement under provisions contained in FR 56 (j) and Rule 48 of
CCS Pension Rules, 1972.
And whereas the Competent Authority has considered all
the facts and circumstances in its entirety and satisfied with the
recommendation of the Committee. And is of the opinion that it is
in the public interest not to retain Shri Ajay Kumar Sharma in
Municipal Services and retire him compulsorily with immediate
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effect under Fundamental Rule 56 (j) and Rule 48 0 (b) of CCS
Pension Rules 1972.
Now, therefore, in exercise of powers conferred under
provisions contained in FR 56 (j) and Rule 48 of CCS Pension
Rules 1972, Shri Ajay Kumar Sharma is compulsorily retired from
Municipal Services with immediate effect and order that three
months’ pay and allowances shall be paid in lieu thereof three
months notice period.
.
Sd/-
(Ramesh Verma)
Additional Commissioner (Engineering)Distribution
Shri Ajay Kumar Sharma S/o Shri J.P. Sharma, Assistant Engineer
(Civil)”
4.6 The petitioner represented against the Office Order dated 13
September 2019 to the Competent Authority to re-examine/review his
case. The request was rejected by the Competent Authority in the
SDMC and communicated vide Office Order dated 13 December
2019, passed by the Additional Commissioner, SDMC, which read as
under :
“SOUTH DELHI MUNICIPAL CORPORATION
OFFCE OF THE ADDITIONAL COMMISSIONER
6TH FLOOR, DR. S.P. MUKHERJEE CIVIC CENTRE
J.L. NEHRU MARG, MINTO ROAD, NEW DELHI – 110002.
No. South DMC/Addl. Cm. (AAT)/SDMC/2019/227
dated: 13.12.2019.
OFFICE ORDER
Whereas a Committee was constituted for the purpose to
ensue probity Government Servants and strengthening of
Administration by undertaking periodic review of all categories of
Government servants under FR 56 (j) and Rule 48 of CCS
(Pension) Rules, 1972 as applicable to the employees of a
Corporation.
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And whereas the Competent Authority had considered all
the facts and circumstances in its entirety and satisfied with the
recommendation of the Committee. And was of opinion that it was
in the public interest not to retain Shri Ajay Kumar Sharma in
Municipal Services and retired him compulsorily with immediate
effect under Fundamental Rules 56 (j) and Rule 48 (i) (b) of CCS
Pension Rules, 1972.
And whereas aggrieved by the said penalty order, Shri Ajay
Kumar Sharma, AE (C) has made representation before Competent
Authority to re-examine/review his case of compulsory retirement.
And whereas a Representation Committee has been
constituted for consideration of representation of Ajay Kumar
Sharma, AE Compulsorily Retired under FR 56 (j) and Rule 48 of
CCS (Pension) Rules, 1972.
And whereas representation Committee is of the opinion
that neither any new material fact nor any point of law was brought
before the Committee by the appellant Shri Ajay Kumar Sharma
for consideration of representation as per instructions and that the
representation is liable to be dismissed.
Now, therefore, the Competent Authority, SDMC has
considered the submissions made by the appellant, all other records
relevant of the case & recommendation of Representation
Committee and reject the representation and uphold the order dated
13.09.2019.
This issues with the approval of Competent Authority.
Sd/Addl.
Commissioner (AAT)
ToShri Ajay Kumar Sharma, Retired AE (C) through AO (Engg.)/HQ”
4.7 Before the Tribunal, the petitioner submitted that the
respondents were required to consider the entire service record of an
officer while assessing whether he was required to be compulsorily
retired under FR 56(j). The petitioner also relied on OM dated 11
September 2015 issued by the DOPT which envisaged periodical
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review of cases of compulsory retirement under FR 56(j) and Rule 48
of the CCS (Pension) Rules, of which paras 1 to 6 may be reproduced
thus :
“The undersigned is directed to refer to this Department’s OM NO.
25013/1/2013-Estt.(A) dated 21/03/2014 on the periodical review
under Fundamental Rule 56 or Rul3 48 of CCS (Pension) Rules.
2. Various instructions issued on the subject deal with
compulsory retirement under the above mentioned provisions. The
Supreme Court has observed in State of Gujarat v Umedbhai M.
Patel11, as follows:
(i) Whenever the services of a public servant are no
longer useful to the general administration, the officer can
be compulsorily retired for the sake of public interest.
(ii) Ordinarily the order of compulsory retirement is not
to be treated as a punishment coming under Article 311 of
the Constitution.
(iii) “For better administration, it is necessary to chop
off dead wood but the order of compulsory retirement can
be passed after having due regard to the entire service
record of the officer”.
(iv) Any adverse entries made in the confidential record
shall be taken note of and be given due weightage in
passing such order.
(v) Even un-communicated entries in the confidential
record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be
passed as a short cut to avoid Departmental enquiry when
such course is more desirable.
(vii) If the officer was given a promotion despite adverse
entries made in the confidential record that is a fact in
favour of the officer.
(viii) Compulsory retirement shall not be imposed as a
punitive measure.
11 2001 (3) SCC 314
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3. In every review, the entire service records should be
considered. The expression ‘service record’ will take in all relevant
records and hence the review should got be confined to the
consideration of the ACR/APAR dossier’. The personal file of the
officer may contain valuable material. Similarly, the work and
performance of the officer could also be assessed by looking into
files dealt with by him or in any papers or reports prepared and
submitted by him. It would be useful if the Ministry/Department
puts together all the data available about the officers and prepares a
comprehensive brief for consideration by the Review Committee.
Even uncommunicated remarks in the ACRs/APARs may be taken
into consideration.
4. In the case of those officers who have been promoted
during the last five years, the previous entries in the ACRs may be
taken into account if the officer was promoted on the basis of
seniority-cum-fitness, and not on the basis of merit.
5. As far as integrity is concerned, the following observations
of the Hon’ble Supreme Court may, while upholding compulsory
retirement in a case, may be kept in view:
“The officer would live by reputation built around him in
an appropriate case, there may not be sufficient evidence to
take punitive disciplinary action of removal from service.
But his conduct and reputation is such that his continuance
in service would be a menace to public servant and
injurious to public interest.
S. Ramachandra Raju v State of Orissa12
Thus while considering integrity of an employee, actions or
decisions taken by the employee which do not appear to be above
board, complaints received against him, or suspicious property
transactions, for which there may not be sufficient evidence to
initiate departmental proceedings may be taken into account.
Judgement of the Apex Court in the case of Shri K. Kandaswamy,
LP.S. (TN.1966) in K. Kandaswamy v Union of India & Anr13. is
relevant here. There were persistent reports of Shri Kandaswamy
acquiring large assets and of his getting money from his
subordinates. He also indulged in property transactions which gave
rise to suspicion about his bonafides. The Hon’ble Supreme Court
upheld his compulsory retirement under provisions of the relevant
Rules.
12 1994 Supp (3) SCC 424
13 1996 AIR 277
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6. Similarly, reports of conduct unbecoming of a Government
servant may also form basis for compulsory retirement. As per the
Hon’ble Supreme Court in State of U.P. And Others v Vijay
Kumar Jain, Appeal (Civil) 2083 of 200214.
If conduct of a government employee becomes unbecoming
to the public interest or obstructs the efficiency in public
services, the government has an absolute right to
compulsorily retire such an employee in public interest.”
4.8 The petitioner contended that the eight considerations
enumerated in para 2 of the aforesaid OM dated 11 September 2015,
extracted supra, had not been borne in mind, while issuing the order
compulsorily retiring him from service.
4.9 It was submitted that the orders dated 13 September 2019 and
13 December 2019 did not cite any specific reason for holding that the
petitioner’s integrity was doubtful or that he was fit for compulsory
retirement.
4.10 The Minutes of the Review Committee, which convened on 13
September 2019, and on the basis of the recommendations of which,
the decision to compulsorily retire the petitioner was taken, recorded
thus :
1 Father’s Name : Shri J.P. Sharma
2. Designation : Assistant Engineer (Civil)
3. Group : ‘B’
4. BMID No. : 10040474
5. Category : General
6. Date of Birth : 24.02.1996
7. Date of : 04.05.1993
Appointment
8. Age as on : 53 years.
14 (2002) 3 SCC 641
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01.07.2019
9. Date of retirement : 28.02.2026
10. Present place of : EE (M)-IV/CNZ
posting
11. Penalty imposed :
1 RDA No. Reduction to a lower stage in the
1/53/2012. time scale of pay by one stage for a
Charge sheet period of two years with cumulative
issued on effect vide OO
05.04.2016 No.1/53/2012/Vig/P/2019/479
dated 11.06.2019.
2. RDA No. Stoppage of two increments with
1/409/2006 future effect vide office order No.
Charge sheet 1/409/06/ Vg./P/NK/2007/2739
issued on dated 08.06.2007.
23.08.2016
3. RDA No. Pending
1/14/2004
(CVC case)
Charge
sheet not
issued.
4. RDA No. Pending
Pending
1/27/2018
(CVC case)
Charge sheet
not issued.
12. Recommendations : The Service record of the official
of Review has been reviewed. He has entered
Committee in the Municipal Service prior to
attaining the age of 35 years and
has completed 50 years of
mandatory age for review as per
provisions of FR 56 (j). As per
entries recorded in his service book
& Personal File, aforesaid penalties
have been imposed during his
service. In view of aforesaid
penalties, his integrity is indeed
doubtful and, therefore, he is a fit
case for premature retirement and,
therefore, the Committee
recommends that the official be
retired prematurely as per F 56 (j)
with immediate effect by giving
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three months pay and allowances in
lieu of three months notice.
Thus, the only basis for compulsorily retiring the petitioner from
service were the two punishments awarded to him consequent on
charge-sheets dated 5 April 2016 and 23 August 2006. It was
submitted that both the charge-sheets had culminated in orders of
punishment, one of which had been passed as far back as on 8 June
2007. Even though compulsorily retirement itself could have been
awarded as punishment, the authorities issuing the charge-sheets did
not deem it appropriate to do so. In these circumstances, the petitioner
contended that the decision to compulsorily retire him from service
was vitiated by non-application of mind and unjustified in the facts
and circumstances of the case.
5. Stand of respondents in counter-affidavit before the Tribunal
5.1 The respondents filed a counter affidavit before the Tribunal, by
way of response to the OA.
5.2 It was submitted in the counter affidavit, that the decision to
compulsorily retire the petitioner from service was taken pursuant to
directions issued by the Hon’ble LG, on the basis of which a Review
Committee, consisting of five Members headed by the Additional
Commissioner (Estt.) had been convened to examine the cases of all
officers working under their administrative control, for compulsory
retirement. Consequent to the deliberations of the Review Committee,
eight officers, of which the petitioner was one, were found fit for
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compulsory retirement in accordance with FR 56(j) and Rule 48(1)(b)
of the CCS (Pension) Rules. Para (iv) of the preliminary submissions
in the counter affidavit is relevant and may be reproduced thus :
“(iv) That the case of the applicant was considered by the
Committee. It was found that following punishments were imposed
upon him:-
(a) RDA No. 1/53/2012, Charge sheet issued on
05.04.2016. Reduction to a lower stage in the time scale of
pay by one stage for a period of two years with cumulative
effect, vide OO No. 1/ 53/2012/Vig./P/Vig./2019 /479 dt.
11.06.2019.
(b) RDA No. 1/409/2006, Charge sheet issued on
23.08.2006. Stoppage of two increments with future effect,
vide OO No.1/409/2006/Vig/P/NK/2007/2739 dt.
08.06.2007.
(c) RDA No. 1/14/2004 (CVC Case), Charge sheet not
issued. Pending
(d) RDA No. 1/27/2018 (CVC Case), Charge sheet not
issued. Pending.”
(Emphasis supplied)
According to the averments in the counter affidavit, the decision to
compulsorily retire the petitioner from service was based on the afore-
noted four punishments imposed upon him. The application submitted
by the petitioner for re-examination/review of the order of
compulsorily retirement had also been examined and found to be
bereft of merit. The respondents placed reliance on the judgments of
the Supreme Court in Posts and Telegraphs Board v C.S.N. Murthy15
, which relied on Baikuntha Nath Das v Chief District Medical
Officer16.
15 (1992) 2 SCC 317
16 (1992) 2 SCC 299
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5.3 The respondents contended that in view of the fact that the
petitioner had been punished consequent to the charge-sheets issued to
him, it could not be said the decision to compulsorily retire him from
service was without justification. Nor could it be said that the Review
Committee had acted on impermissible or irrelevant considerations.
5.4 In view of these submissions, the respondents prayed that the
OA be dismissed.
6. Rejoinder by petitioner before the Tribunal
The petitioner filed a rejoinder before the Tribunal, in which it was
contended that a conclusion regarding doubtful integrity could not be
lightly arrived at. The doubt had to be of such a nature as would
reasonably and conclusively be entertained by a reasonable man on
the available material. It was submitted that the Review Committee
had entirely ignored the fact that, in all the ACRs of the petitioner, he
had been graded either ‘very good’ or ‘outstanding’. The petitioner
placed reliance on the judgments of the Supreme Court in Baldev Raj
Chadha v UOI17, O.P. Gupta v UOI18, H.C. Gargi v State of
Haryana19, N.C. Dalwadi v State of Gujarat20 and M.S. Bindra v
UOI21.
The Impugned judgment
17 (1980) 4 SCC 321
18 (1987) 4 SCC 328
19 (1986) 4 SCC 158
20 (1987) 3 SCC 611
21 (1998) 7 SCC 310
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7. The Tribunal has, by Order dated 22 October 2020, dismissed
the petitioner’s OA. The findings of the Tribunal read thus :
“6. The applicant was subjected to compulsory retirement
through order dt. 13.09.2019. FR 56 (J) and the Rule 48 of CCS
(Pension) Rules, 1972 were invoked. The impugned order was
passed on the basis of recommendation made by the Committee
constituted for that purpose. The Committee comprised of senior
most officers of the Corporation. Certain parameters were also
fixed for that purpose. For invoking FR 56 (J), it was decided to
apply to such of those officers in Group -A’ & -B’, who have
entered the service before 35 years of age and have attained the age
of 50 years. As regards, Rule 48(1) (b) of CCS (Pension) Rules, the
requirement is that the officer must have completed 30 years of
qualifying service. The exercise done in respect of the applicant
was mentioned in the reply in paras (iii) (iv) & (v) of Preliminary
Submissions, which read as under:
“iii. That after collecting all the data from respected
Cadre Controller and HoDs, a meeting was convened in the
office of the Chairman Review Committee i.e. Additional
Commissioner (Estt.) on 13.09.2019 (Annexed herewith as
Ann. R-2), in which 08 Officers/ Officials out of 19, were
found fit for compulsory retirement, as per the provisions
contained under FR 56(J) and Rule 48(I)(b) of CCS
(Pension) Rules, 1972. The name of the applicant was also
in the list.
iv. That the case of the applicant was considered by the
Committee. It was found that following punishments were
imposed upon him:-
(a) RDA No. 1/53/2012, Charge sheet issued on
05.04.2016. Reduction to a lower stage in the time
scale of pay by one stage for a period of two years
with cumulative effect, vide oo. No.
1/53/2006/2012/Vig./P/Vig./2019/479, dt.
11.06.2019.
(b) RDA No. 1/409/2006, Charge sheet issued
on 23.08.2006. Stoppage of two increments with
future effect, vide oo.
No.1/409/2006/Vig/P/NK.2007/2739 dt.
08.06.2007.
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(c) RDA No. 1/14/2004 (CVC Case), Charge
sheet not issued. Pending
(d) RDA No. 1/27/2018 (CVC Case), Charge
sheet not issued. Pending.
v. That after considering the above, the Committee
recommended as follows:-
Recommendation of Review Committee:-
“The Service record of the official has been reviewed. He
has entered in the Municipal Service prior to attaining the
age of 35 years and has completed 50 years of mandatory
age for review as per provisions of FR (j).
As per entries recorded in his service book & Personal File,
aforesaid penalties have been imposed during his service.
In view of aforesaid penalties, his integrity is indeed
doubtful and therefore, he is a fit case for premature
retirement and therefore the Committee recommends that
the official be retired prematurely as per FR 56(j) with
immediate effect by giving three months pay and
allowances in lieu of three months notice.”
7. The principles, with reference to which the cases of
compulsory retirement are to be decided, were enunciated by the
Hon’ble Supreme Court in Baikuntha Nath Das v Chief District
Medical Officer, Baripada. Their Lordships have summarised the
manner in which the cases of compulsory retirement are to be
examined. It was observed that an order of compulsory retirement
is not one of punishment and it is not liable to be quashed simply
on the ground that uncommunicated adverse remarks were taken
into consideration. At the same time, a note of caution was also
added that the provisions cannot be pressed into service,
indiscriminately.
8. An order of compulsory retirement cannot be justified
solely on the ground that an employee was imposed the penalty or
punishment at some stage or the other. However, the instances of
imposition of punishment in the years immediately preceding the
review would certainly constitute the basis. In addition to that,
even if no disciplinary proceedings are pending as such, the
existence of material sufficient for initiation of such proceedings
can also be treated as a factor. In the instant case, even if we ignore
the punishment that was imposed upon the applicant in the year
2007 with reference to the charge sheet dt. 23.08.2006, the one
imposed through order dt. 11.06.2019 with reference to the charge
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sheet dt. 05.04.2016, cannot be disregarded. It was a major penalty
imposed after the applicant was promoted to the post of Assistant
Engineer. Though the applicant filed OA challenging the order of
punishment, it hardly constitutes a circumstance to interdict the
invocation of FR 56(J). In addition to that, two CVC cases were
pending against the applicant. Though they did not lead to issuance
of charge memo, the factors would certainly tell upon the
functioning of the applicant.”
8. Aggrieved thereby, the petitioner is before us.
9. We have heard Mr. Mohinder J S Rupal, learned counsel for the
petitioner and Ms. Sriparna Chatterjee, learned Standing Counsel for
the MCD.
Rival Contentions
10. Submissions of Mr. Rupal
Besides reiterating the contentions advanced by the petitioner in the
OA and in the pleadings before the Tribunal, Mr. Rupal submits that
the petitioner had not only been promoted as AE on 23 July 2009 but
had been graded ‘very good’ or ‘outstanding’ in all his ACRs with the
accompanying remarks that his integrity was beyond doubt. He
submits that both the Office Orders dated 13 September 2019 and 13
December 2019, whereby the petitioner was compulsorily retired from
service and whereby the appeal of the petitioner against the order of
compulsorily retirement was dismissed, were cryptic and non-
speaking. Mr. Rupal has placed reliance on the judgments of the
Supreme Court in Pramod Kumar Bajaj v UOI22 and Kranti
22 (2023) 11 SCC 466
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Associates (P) Ltd v Masood Ahmed Khan23.
11. Submissions of Ms. Chatterjee
11.1 Responding to the submissions of Mr. Rupal, Ms. Chatterjee,
appearing for the MCD, submits that the judgment in Pramod Kumar
Bajaj was expressly rendered “in the facts and circumstances of the
case” and was therefore limited to its own facts. In so far as the
emphasis placed by Mr. Rupal on the gradings in the ACRs is
concerned, Ms. Chatterjee places reliance on the following paragraph
from DOPT OM dated 28 August 2020 under the subject “Periodic
review of Central Government Employees for strengthening of
administration under FR 56 (j)/(l) and Rule 48 of the CCS (Pension)
Rules, 1972”:
“10. Broad Criteria to be followed by the Review Committee:-
The broad criteria to be followed by the Review Committee while
making the recommendations are as follows:-
(i) Government servants whose integrity is doubtful,
shall be retired.
(ii) Government servants found to be ineffective shall
also be retired. The basic consideration in identifying such
Government servants should be their fitness/competence to
continue in the post held.
(iii) No Government servant should ordinarily be retired
on ground of ineffectiveness, if, in any event, he would be
retiring on superannuation within a period of one year from
the date of consideration of his case. However, in a case
where there Is a sudden and steep fall in the competence,
efficiency or effectiveness of a Government servant. It
would be open to review such a case also for premature
retirement. The said instruction of not retiring the23 (2010) 9 SCC 496
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Government servant within one year on the ground of
ineffictiveness except in case of sudden and steep fail in his
performance is relevant only when he is proposed to be
retired on the ground of ineffectiveness, but not on the
ground of doubtful integrity.
(iv) No Government servant should ordinarily be retired
on ground of ineffectiveness, if, his service during the
preceding 5 years or where he has been promoted to a
higher post during that 5 year period, his service in the
highest post, has been found satisfactory. There is no such
stipulation, however, where the Government servant is to
be retired on grounds of doubtful integrity. In case of those
Government servants who have been promoted during the
last 5 years, the previous entries in the ACRs may be taken
into account if he was promoted on the basis of seniority
cum fitness, and not on the basis of merit.
(v) The entire service record of a Government servant
should be considered at the time of review. The expression
‘service record’ refers to all relevant records and therefore,
the review should not be confined to the consideration of
the ACR/APAR dossier. The personal file of the
Government servant may contain valuable material.
Similarly, his work and performance could also be assessed
by looking into files dealt with by him or in any papers or
reports prepared and submitted by him. It would be useful
if the Ministry / Department/Cadre puts together all the data
available about the Government servant and prepares a
comprehensive brief for consideration by the Review
Committee. Even uncommunicated remarks in the
ACRs/APARs may be taken into consideration.”
11.2 She further places reliance on para 8 of the judgment of the
Supreme Court in UOI v Col. J.N. Sinha24 and State of Orissa v
Ram Chandra Das25.
WP (C) 6590/2021 [S.K. Chauhan v North Delhi Municipal
Corporation]
24 (1970) 2 SCC 458
25 (1996) 5 SCC 331
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The lis
12. The petitioner moved the Tribunal by way of OA 1974/202026,
challenging order dated 31 October 2019, issued by the
Commissioner, North DMC under FR 56(j) read with Rule 48 of the
CCS (Pension) Rules, whereby he was compulsorily retired from
service. The Tribunal has, by judgment dated 9 April 2021, dismissed
the OA. Aggrieved thereby, the petitioner has approached this Court
under Article 226 of the Constitution of India.
13. Case of petitioner in the OA
13.1 The case set up by the petitioner, before the Tribunal in the OA,
was as under.
13.2 The petitioner was directly recruited as AE in the MCD on 17
September 1998. During the period 30 June 2003 to 31 December
2005, the petitioner was posted as AE (Building) in Karol Bagh and
Rohini. In connection with the duties performed by him during the
said period, two charge-sheets, dated 30 and 31 August 2006 were
issued to the petitioner, proposing institution of disciplinary
proceedings against him. These charge-sheets culminated in Office
Order dated 23 April 2007, in respect of the chargesheet dated 31
August 2006, imposing, on the petitioner, the penalty of “reduction in
the present time scale of pay by one stage for a period of one year
with cumulative effect” and Office Order dated 18 November 2008 in
26 S.K. Chauhan v North DMC
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respect of the charge-sheet dated 30 August 2006, imposing, on the
petitioner, the penalty of “withholding of two increments for two
years without cumulative effect”. Admittedly, the first penalty was a
major penalty, as it was awarded with cumulative effect, whereas the
second penalty was a minor penalty.
13.3 Five other chargesheets were also issued to the petitioner,
which were dropped on 20 December 2007, 14 August 2008, 27 May
2009, 16 November 2011 and 13 January 2012. Yet another
chargesheet, dated 20 September 2019, issued to the petitioner, was
challenged by him in OA 152/2020. By order dated 12 October 2020,
this Tribunal directed that the enquiry, following the said chargesheet,
be deferred till further orders. The said OA is still pending.
13.4 Ergo, as on the date of the passing of the order dated 31
October 2019, whereby the petitioner was compulsorily retired from
service, the only blots on his escutcheon, if one may call them that,
were the penalty of reduction in the present time scale of pay by one
stage for a period of one year with cumulative effect awarded on 23
April 2007 and of withholding of two increments for two years
without cumulative effect, awarded on 18 November 2008.
13.5 On 24 August 2009, the petitioner was promoted as Executive
Engineer27 (Civil) on ad hoc basis, and was thereafter promoted as
regular EE (Civil), following the recommendations of a duly
constituted Departmental Promotion Committee held by the Union
27 “EE” hereinafter
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Public Service Commission, on 12 January 2017.
13.6 The petitioner also provided, in the OA, a tabular statement of
the gradings given to him in his Annual Confidential Reports28 for the
years 2014-2015 till 2018-2019, as well as the remarks regarding
integrity contained in the said ACRs, thus:
S.No Year Grading Integrity
1. 2018-2019 Very Good Beyond
Doubt
2 01.04.2017- Outstanding Beyond
06.11.2017 Doubt
3 07.11.2017- Outstanding Beyond
31.03.2018 Doubt
4 01.04.2016- Very Good Beyond
30.08.2016 Doubt
5 31.08.2016- CR not recorded as
15.11.2016 the tenure was for less
than three months
6 16.11.2016- Outstanding Beyond
31.03.2017 Doubt
7 01.04.2015- Outstanding Beyond
20.10.2015 Doubt
8 21.10.2015- Very Good Beyond
31.03.2016 Doubt
9 2014-2015 Very Good Beyond
Doubt
13.7 Despite such an enviable ACR record, the petitioner was, by
order dated 31 October 2019, compulsorily retired from service,
purportedly under FR 56(j) and Rule 48 of the CCS (Pension) Rules.
The petitioner contended that, in any event, Rule 48 of the CCS
(Pension) Rules would not apply to him, as he had completed only 21
years of service on the date of passing of the order of compulsory
retirement, whereas Rule 48 applied only to officers who had
28 “ACRs” hereinafter
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completed 30 years of qualifying service. The order of compulsory
retirement read thus:
“NORTH DELHI MUNICIPAL CORPORATION
OFFICE OF THE COMMISSIONER
4TH FLOOR, Dr. SP Mukherjee Civic Centre,
Pt. J.L.N. Marg, New Delhi-110002No.: CMR/NDMC/2019/ D-460 Dated: 31 October 2019
OFFICE ORDER
Whereas Committee(s) have been constituted to ensure
probity of Government Servants and strengthening of
Administration by undertaking periodic review of all categories of
Government servants under FR 56 (j) and Rule 48 of CCS
(Pension) Rules, 1972 as applicable to the employees of the
Corporation.
And Whereas, the final Review Committee so constituted
for the above purpose has recommended Sh. S.K. Chauhan S/o Sh.
Mangu Singh Chauhan, Executive Engineer (Civil) to be
considered for compulsory retirement under the provision
contained in FR 56 (j) and Rule 48 of CCS (Pension) Rules, 1972.
And Whereas, the undersigned has considered the
recommendation of the said Review Committee and all the facts
and circumstances of the case in its entirety and being personally
satisfied with the case, is of the considered opinion that it is indeed
in public interest not to retain Sh. S.K Chauhan S/o Sh. Mangu
Singh Chauhan, E.E.(Civil) any further in Municipal Services and
to retire him compulsorily with immediate effect under
Fundamental Rule 56 (j) and Rule 48(1)(b) of CCS Pension Rule,
1972.
Now, therefore, in exercise of powers conferred under
provision contained in FR 56 (j) and Rule 48 of the CCS Pension
Rule 1972, Sh. S.K. Chauhan S/o Sh. Mangu Singh Chauhan,
E.E.(Civil) is compulsorily retired from Municipal Services with
immediate effect and further order that three months pay and
allowances shall be paid to him immediately in lieu of three
months’ notice period thereof.
Sd/-
Varsha Joshi
Commissioner
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North D.M.C”
13.8 The petitioner submitted a representation, dated 21 November
2019, seeking review of the order dated 31 August 2019, whereby he
was compulsorily retired from service. The representation was
rejected by the respondent vide the following Office Order dated 17
February 2020:
“No.CMR/NDMC/2020/D-33 Dated 17th February, 2020
OFFICE ORDER
Whereas, Internal as well as Joint Review Committee/s
were constituted for the purpose to ensure probity of Government
Servants and strengthening of Administration by undertaking
periodic review of all categories of Government Servants under FR
56 (j) and Rule 48 of CCS (Pension) Rules, I972, as applicable to
the employees of the Corporation.
And Whereas, the Competent Authority had considered the
recommendations of the said Internal as well as Review
Committee/s and all the facts and circumstances of the case in its
entirety and satisfied with the case, was of the considered opinion
that, it is indeed in the public interest not to retain Shri S K
Chauhan, Executive Engineer ( Civil) ( EE) in Municipal Services
and to retire him compulsorily with immediate effect under
Fundamental Rule 56 (j) and Rule 48 (I) of CCS Pension Rules,
I972. Accordingly, Shri S K Chauhan was compulsorily retired
from Municipal Services with immediate effect vide Competent
Authority’s order number CMR/NDMC/2019/D-460 dated 31st
October, 2019.
And Whereas, aggrieved by the said order, Shri S K
Chauhan, Retd. EE (Civil) has made representation before the
Competent Authority to re-examine/review his case of compulsory
retirement.
And, Whereas earlier a Representation Committee was
constituted to consider all such representations against the
compulsory retirement under FR 56 (j) and Rule 48 of CCS (
Pension) Rules, 1972.
And, Whereas, it was felt appropriate to reconstitute the
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said Representation Committee.
And Whereas, the Representation Committee so
reconstituted for consideration of the representation of Shri S K
Chauhan, EE ( Civil), compulsory retired under Fundamental Rule
56 (j) and Rule 48 (l) of CCS Pension Rules, 1972 has given a
personal hearing to Shri S K Chauhan, Retd EE ( Civil) on
13/2/2020.
And, Whereas, the said Representation Committee after
considering the submissions made by Shri SK Chauhan and also
hearing him in person has submitted its recommendation that
neither any new facts nor any new aspect of a fact already known
but which was not taken into account at the time of issue of notice
!order of premature retirement was brought before the Committee
by Sh. S K Chauhan for consideration of said representation as per
extant instructions.
And, Whereas, the Representation Committee is of the
opinion that there is no merit in the said representation and the
same is liable to be rejected.
Now, therefore, after considering the submissions made by
Shri S K Chauhan, and all other records of the case in his entirety
and the recommendations of the Representation Committee, the
representation of Shri S K Chauhan is hereby rejected.
Sd/-
Varsha Joshi
Commissioner
North DMC”
13.9 Aggrieved thereby, the petitioner approached the Tribunal by
way of OA 1974/2020, seeking quashing of the order dated 31
October 2019, whereby he was compulsorily retired from service,
with consequent reinstatement with effect from the date when the
order was passed.
14. Respondent’s stand in reply
14.1 The respondent, in its counter-affidavit before the Tribunal,
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submitted that the order of compulsory retirement of the petitioner,
having been passed after following due process and procedure, did not
justify interference. It was submitted that the appropriate authority had
absolute rights to retire a public servant under FR 56(j) in public
interest, and the government servant who is so retired has no
enforceable right to claim to continue in service. It was pointed out
that the petitioner had not alleged any mala fides or bias against the
respondents. In fact, the OA was effectively calling upon the Tribunal
to sit in appeal over the decision of the appropriate authority to
compulsorily retire the petitioner, which was impermissible. Reliance
was placed on letter dated 3 July 2019, from the Hon’ble LG,
requiring measures to be taken to remove corruption from government
functioning, which would include compulsorily retirement under FR
56(j). As in the case of Ajay Kumar Sharma, the respondent, in this
case, too, pointed out that the decision to compulsorily retire the
petitioner had been taken by a duly constituted Review Committee,
chaired by the Additional Commissioner.
14.2 Emphasis was laid, in the counter-affidavit, on the fact that the
penalty of reduction to a lower time scale, with cumulative effect, is a
major penalty. On an overall assessment of the petitioner’s service
record, the Review Committee came to a decision that his integrity
was doubtful and that, therefore, he was required to be compulsorily
retired. The representation made by the petitioner was also considered
by the Representation Committee on 13 February 2020, which also
afforded the petitioner an opportunity of personal hearing.
14.3 According to the averments in the counter-affidavit filed before
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the Tribunal, the case of the petitioner had been examined on the
touchstone of doubtful integrity, and not ineffectiveness. In so
considering the case of the petitioner, the number of instances of
disciplinary proceedings initiated against him, the gravity of charges
levelled in the said proceedings and the final nature of the penalty
imposed on him during his entire service record, were kept in mind.
Inasmuch as the Review Committee had correctly considered all these
relevant factors, the Representation Committee did not find any cause
to interfere with its decision.
14.4 In these circumstances, the respondents contended, in the
counter-affidavit, that no case for reconsideration of the decision to
compulsorily retire the petitioner was made out.
15. The impugned judgment
15.1 The Tribunal has, by judgment dated 9 April 2021, dismissed
OA 1974/2020. The reasoning of the Tribunal is contained in the
following paragraphs from the impugned judgment:
“17. The accepted and established position under law is that
cases relating to various officers have to be evaluated on the basis
of their own merits. It is evident that comparative evaluation is not
contemplated and, as such, has nowhere been provided for. The
applicant has failed to demonstrate, even remotely, that this could
be a consideration in the legal and procedural framework created
for the purpose of compulsory retirement. This contention, relating
to the service records of other officers and comparison with that of
the applicant, therefore, merits no further discussion.
18. It has been contended that the applicant was promoted in
the year 2017 and this establishes and underscores the fitness of the
applicant to be continued in service. As has been stated in the
DoPT OM referred above, the entire service record has to be taken
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into consideration while assessing the case of an officer, though
greater reliance may be attached to the recent past 5 years. This,
however, comes with the rider that it is only when ineffectiveness
is the issue and does not extend to cases relating to integrity.
19. It has been forcefully contended on behalf of the
respondents that the applicant’s case was of doubtful integrity. To
elucidate, the record of the applicant relating to departmental
proceeding is reproduced as below:
Pending 1/48/2019 Charge sheet issued on 20.09.2019
RDA case Penalty in RDA case
Penalty 1/130/2006 Drop vide OO No.1/130/206
/Vig./P/AM/2008/231 dt. 14.5.2008
Penalty 1/361/2006 Reduction in the present time scale of
pay by one stage for a period of one
year with cumulative effect vide OO
No.1/361/2006/Vig./P/NK/2007/4082
dt. 10.12.2007
Penalty 1/385/2006 Withholding of two increments for
two years without cumulative effect
vide OO
No.1/385/2006/Vig./P/NK/2008/789
dt. 18.11.2008
Penalty 1/11/2007 The Commissioner has ordered to
drop the RDA No.1/11/2007 pending
against Sh. S.K. Chauhan, AE vide
OO No.1/11/2007 & 1 /
385/2006/Vig./P/NK/2007/4131 dt.
20.12.2007
Penalty 1/36/2008 Dropped vide OO
No.1/36/2008/Vig./P/RBS/2009/91
dt. 27.5.2009
Penalty 1/118/2011 Dropped vide OO No.1/118/2011
ADOV-1/Vig./2012/322 dt. 13.1.12
Penalty 2/112/2011 Dropped vide OO
No.2/112/2011/Vig./P/SM/2011/176
dt. 16.11.2011
20. As argued on behalf of the respondents, and borne out by
facts on record, in a career spanning about twenty one years, eight
departmental actions have been initiated against the applicant
resulting in imposition of major penalty in one matter and minor
penalty in another. Five cases were dropped, and one case is
pending. Most of these cases, if not all, related to integrity issues.
We make it clear that we are not indicating our opinion regarding
the integrity of the officer. Any reference made in this regard is for
the Sole purpose of negating, on the basis of facts on record, any
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argument that the competent authority was not justified in coming
to the conclusion that the applicant had doubtful integrity. The
decision cannot be faulted on the ground of absence or inadequacy
of basis.
21. The argument relating to benchmarks or the nature of
penalties and their numbers in the context of action of compulsory
retirement is also of little significance. Action under Rule 56(j) of
Fundamental Rules cannot be a mechanical exercise. Various
factors have to be taken into account and it is for this purpose that
safeguards like having Committees, and, at different levels, have
been inbuilt into the system. The affected officer has the right to
represent too. The concept is clearly, to prevent misuse or
arbitrariness. There could be guidelines, and safeguards, but no
system of decision making in the field of human resources can
entirely be algorithm driven.
22. Our attention has also been drawn to the ACRs of the
applicant for the last five years and the fact that the ratings are
‘outstanding’ or ‘very good’ and integrity has been certified as
‘beyond doubt’. It has been informed by the respondents that they
had other negative inputs about the applicant. Though ACRs serve
as useful input in relation to the evaluation of performance of an
officer, they cannot be held as the be all and end all for his overall
assessment. The comments in the ACRs naturally, cannot be
exhaustive though they may be useful indicators. Hence, if the
competent authority had inputs about the concerned officer which
went beyond what was recorded in the ACRs by officers restricted
by the limited knowledge under their command, the same cannot
be ignored. Further, the decision making is not confined to a single
authority and there are several inbuilt safeguards. For these
reasons, contention to such effect too, does not find favour with us.
23. In such matters, the scope of judicial review is somewhat
limited as has been held in a series of pronouncements by the
Hon’ble Apex Court, Hon’ble High Courts and this Tribunal. The
main test is, that the order of compulsory retirement should not
suffer from mala fide, of no evidence or arbitrariness. No such
aspect exists in the present case.
24. Having examined the present case in the light of these
broader principles, we are of the view that the record of the
applicant was duly examined by the Committees constituted for the
purpose and a conclusion was reached that the applicant requires to
be compulsorily retired. He was given the opportunity to make a
representation, which after due examination was rejected. There
are, thus, no factors in the present case which would merit our
intervention.”
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16. Aggrieved by the decision of the Tribunal, the petitioner has
approached this Court by means of the present writ petition under
Article 226 of the Constitution of India.
17. We have heard Mr. Sanjiv K. Jha for the petitioner and Ms.
Sriparana Chatterjee for the Respondent-MCD.
Rival Contentions
18. Submissions of Mr. Jha
18.1 Mr. Jha 1st places reliance on paras 5 and 7 of Circular dated
25th July 2019 issued by the North DMC with its subject titled
“Review of mechanism to ensure probity of Government Servants –
strengthening of administration – periodical review under FR 56(j)
and Rule 48 of CCS (Pension) Rule 1972”, which read thus:
“5. The criteria to be followed by the Committee in making the
recommendations would be as follows:-
(a) Government employees whose integrity is doubtful
will be retired.
(b) Government employees who are found to be
ineffective with also be retired. The basic consideration in
identifying such employee should be the
fitness/competence of the employee to continue in the post
which he/she is holding.
(c) While the entire service record of an Officer should
be considered at the time of review, no employee should
ordinarily be retired on grounds of ineffectiveness if his
service during the preceding 5 years or away he has been
promoted to a higher post during that 5 year period, his
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service in the higher post has been found to be satisfactory
stop consideration is ordinarily to be confined to the
preceding 5 years of the period in the higher post, in case of
promotion within the period of 5 years, only when
retirement is sought to be made on grounds of
ineffectiveness. There is no such stipulation, however by
the employee is to be retired on grounds of doubtful
integrity.
(d) No employee should ordinarily be retired on
grounds of ineffectiveness, if, in any event, he would be
retiring on superannuation within a period of one year from
the date of consideration of his case. Ordinarily no
employee should be retired on the ground of
ineffectiveness if he is retiring on superannuation within a
period of one year from the date of consideration of the
case. It is clarified that in a case where there is a sudden
and steep fall in the competence, efficiency or effectiveness
of an officer, it would be open to review his case for
premature retirement. The above instruction is relevant
only when an employee is proposed to be retired on the
ground of ineffectiveness, but not on the ground of
doubtful integrity. The damage to public interest would be
marginal old employee, in the last year of service, is found
ineffective; but the damage may be incalculable if he’s
found corrupt and demands or obtains illegal gratification
during the said period for the tasks he is duty-bound to
perform.
*****
7. As per DOPT ON dated 11.09.2015 the Cardre Controlling
Authority will constitute Review Committees consisting of 2
members at appropriate level. In terms of DOPT OMs dated
21.03.2014 and 11.09.2015 on periodical review under FR 56 or
Rule 48 of CCS (Pension) Rules, review of officers is broadly
covered under the following guidelines:
a) If service of an officer was not useful one can be
compulsorily retired in public:
b) Review in after having due regard to the entire
service record of the officers viz. ACR/PAR dossier,
personal file work and performance of the officer in
files/reports prepared;
c) Adverse entries including uncommunicated entries
in CRs should be taken note of given due weightage.
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d) Integrity: Actions/decisions which do not appear to
be above board; complaints received suspicious property
transactions – not sufficient evidence to initiate disciplinary
proceedings.
e) Conduct unbecoming to the public interest or
obstructs efficiency in public services.
f) Not a shortcut to avoid the disciplinary proceedings
and should not be resorted to as a punitive measure;
g) Promotion despite adverse increase in ACRs is a
fact in favour of the Officer.
h) In cases of officers promoted during the last 5
years, the previous increase in ACRs may be taken into
account if the officer was promoted on non-selection and
not on selection.
i) While considering integrity, action and decisions of
the officer which do not appear above board, complaints
received against him suspicious property transactions for
which there may not be sufficient evidence to initiate
disciplinary proceedings may be taken into account;
j) Reports of conduct unbecoming of a Govt. servant
may also form the basis for compulsory retirement.”
Mr. Jha contends that the petitioner’s case does not attract any of the
criteria envisaged by of the North DMC Circular dated 25 July 2019.
18.2 Mr. Jha submits that, in terms of paragraph 14 of the North
DMC Circular dated 25 July 2019, the pro forma for review of the
petitioner’s case for considering whether he was fit for compulsory
retirement, was prepared. A copy thereof has been placed on record as
Annexure P-22 to the writ petition. All entries in the pro forma are
blank, except for Entries 1, 3, 4, 10, 11, 12 and 13:
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PROFORMA TO REVIEW THE PERFORMANCE OF OFFICERS. No. Particulars
1. Name and designation of Sh. S.K. Chauhan, S/o Sh.
the officer Mangu Singh Chauhan,
EE(Civil)
2 Grade/ Pay Band/ Grade
Pay
3 Date of birth (age as on 09.09.1966
01.07.2009)
D.O.B- 54
4 Date of joining in Govt. 18.09.1998
Office
5 Leave availed during the
past five years (from the
service book) (Please
provide break up as well
as the total period)
6 State of Health
7 Whether the health of the
officer/officials has a
bearing on discharge of
his duties (Yes/No) (If
yes, please elaborate)
8 Whether services of the
officer are considered
useful to the Govt.
(Yes/No)
9 Whether the officer/
officials is competent and
effective and fit to
continue to hold the post
occupied by him or to
continue in cadre
(Yes/No) (If no, please
provide reason)
10 Status of integrity Doubtful
11 Is there any reasons to Yes, as per RDA Status/Police
doubt the integrity viz. case CBI/ACB report as
complaint of suspicious mentioned at point no.12 below
transaction in property,
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corruption, information
feedback etc. (Yes/No)
(If yes please specify)12 Details of RDA Status Police
penalties, case
if any, Pending Final CBI/A
imposed CB
on the reports
officers/
officials 1/130/2006- Drop
during the Vide OO No.
entire 1/130/2006/Vig./P/A
career M/2008/231 dt.
14.05.2008
1/136/2006-
Reduction in the
present time scale of
pay by one stage for
a period of one year
with cumulative
effect Vide OO No.
1/361/2006/Vig./P/N
K/2007 /4082 dt.
10.12.2007
1/385/2006-
1/48/2019- withholding of two
C/Sheet increments for two
issued on years without
20.09.2009 cumulative effect
vide OO No.
1/385/2006/Vig./P/N
K/2008/789 dt.
18.11.2008
1/11/2007- The
Commissioner has
ordered to drop the
RDA no. 1/11/2007
pending against Sh.
S.K. Chauhan, AE
vide OO
No.1/11/2007 &
1/385/2006
Vig./P/NK/2007/413
1 dt.20.12.2007.
1/36/2008-Dropped
vide OO No.
1/36/2008/Vig./
P/RBS/2009/91 dt.
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27.05.2009.
1/118/2011-Dropped
vide OO
No.1/118/2011
/AdOV-
1/Vig./2012/232
dt.13.1.12.
2/112/2011- dropped
Vide OO No. 2/112/
2011/Vig./P/SM/201
1/176 dt.
16.11.2011.
13 ACR/APAR grading during the last 5 years. If
there is any adverse entry, please specify
S. No. Year ACR/APAR Remarks, if any.
grading
1 2014-15 Outstanding
2. 01.04.2015 Outstanding
to
20.11.2015
3 21.10.2015 Very Good
to
31.03.2016
4 01.04.2016 Not filed
to
30.08.2016
5 31.08.2016 Non recording
to certificate
15.11.2016
6 16.11.2016 Outstanding
to
31.03.2017
7 2017-2018 Outstanding
8 2018-2019 Very Good
Mr. Jha draws attention to the fact that the petitioner was in fact
promoted as EE on 12 January 2017 and that this fact was not placed
before the Review Committee. Mr Jha submits that there is, in fact,
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nothing on record on the basis of which the integrity of his client be
said to be doubtful. The sole disciplinary proceeding, in which his
client was visited with a major penalty was a charge-sheet dated
31.08.2006, issued to the petitioner, in which the Statement of
Charges read thus:
“Shri S.K.Chauhan was working as AE in Bldg. Deptt., Rohini
Zone and remained in charge of Ward No. 29, 30 and 99 with
effect from 12.8.2004 to 30.12.2005. He committed lapses on the
following counts:-
1. He in connivance with the owners/builders allowed
them to carry out and complete the unauthorised
construction in properties indicated in the Annexure ‘A’
forming part of the Statement of allegation and failed to get
stopped/demolished the same initial/ongoing stage.
2. He also failed to get booked the unauthorised
construction carried out in the properties for taking action
u/s 343/344 of DMC Act.
3. He failed to get initiated action for sealing the
unauthorised construction u/s 345-A of DMC Act.
4. He also failed to get initiated action for prosecution
against the order/builder u/s 332/461 or complaint u/s 466-
5. He also failed to get initiated action for
disconnection of electricity and water supply to prevent the
unauthorised construction.
6. He also failed to exercise proper supervision and
control over the functioning of his subordinates who did
not take proper and timely action against the aforesaid
properties.
He, thereby, contravened Rule 3(1)(i) (ii) (iii) & 3(2) of CCS
(Conduct) Rules, 1964 as made applicable to the employees of
MCD.”
Though this charge sheet culminated in the imposition, on the
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petitioner, of penalty of reduction in the time scale of pay by one stage
for one year with cumulative effect, it was significant that, though the
Disciplinary Authority, while imposing the above penalty,
recommended that further action would be taken by the Vigilance
Department, no such action was taken. This itself indicated that the
allegations against the petitioner in the chargesheet dated 31.08.2006
did not involve any vigilance angle. Mr. Jha points out that the
Inquiry Officer29 had specifically found the charge of connivance
between the petitioner and the builders/owners not to be proved. In the
circumstances, the finding of the Tribunal that the charge-sheets
which had resulted in imposition of penalty on the petitioner involved
integrity issues was factually incorrect.
18.3 Mr. Jha further faults the Tribunal with respect to its
observation, in para 22 of the impugned judgment, that the
Respondents had informed the Tribunal “that they had other negative
inputs about” the petitioner. The details of the “inputs”, he submits,
are not forthcoming anywhere on the record, and do not find mention
in the impugned order either. This, therefore, according to Mr. Jha, is
an observation which is totally bereft of application of mind.
18.4 Mr. Jha further submits that the Tribunal has accorded no
relevance, whatsoever, to the fact that, in the ACRs of the petitioner
for the past 6 years prior to the passing of the impugned order of
compulsory retirement, it had been specifically noted that his integrity
was beyond doubt. In all these years, the petitioner was graded either
29 “the IO” hereinafter
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“outstanding” or “very good”. This, according to Mr. Jha, is a pre-
eminent circumstance which has been completely ignored by the
Tribunal and serves by itself to vitiate the decision to compulsorily
retire the petitioner.
19. Submissions of Ms. Chatterjee
Ms. Chatterjee, in response, broadly reiterated the grounds advanced
by her in her response in the writ petition filed by Ajay Kumar
Sharma, which have already been noted earlier in this judgment.
Besides, she refutes the contention of Mr. Jha that the case of the
petitioner did not fall within any of the criteria enumerating in para 7
of the North DMC circular dated 25 July 2019. She submits that one
of the criteria is “conduct unbecoming of a government servant” and,
given the facts of the case, the respondents were right in arriving at
the conclusion that the conduct of the petitioner was unbecoming of a
government servant. She further submits that, even if there was only
one major penalty imposed on the petitioner, that, by itself, was
sufficient to justify the decision to compulsorily retire him. So long as
the decision is not vitiated by arbitrariness or mala fides, and is
founded on some material, Ms. Chatterjee submits that the Court
should refrain from interfering therewith. She submits that the onus to
demonstrate that the decision to compulsorily retire the petitioner was
arbitrary lies on the petitioner himself, and that this onus has not been
discharged.
20. Mr. Jha, by way of rejoinder, merely responds to this last
contention of Ms. Chatterjee, by submitting that, as the order of
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compulsory retirement was unreasoned, there was no way in which
the petitioner would positively demonstrate arbitrariness. The
conclusion of arbitrariness has, therefore, to follow from the fact that
there was no justification for passing the said order, and no
justification finds place in the order itself.
Analysis
21. The impugned judgments
21.1 At a bare glance, it is apparent that neither of the impugned
judgments passed by the Tribunal, forming subject matter of challenge
in these writ petitions, can sustain in law. They are cryptic and do not
take into account all relevant factors, including the contentions
advanced by the petitioners before them.
21.2 The decision in Ajay Kumar Sharma’s case
21.2.1 In the decision in the case of Ajay Kumar Sharma, the entire
reasoning is contained in para 8 of the judgment of the Tribunal. In
the said paragraph, the Tribunal has merely referred to the punishment
imposed on the petitioner on 11 June 2019, following the charge-sheet
on 5 April 2016. Apart from this, the Tribunal has referred to the fact
that two CVC cases were pending against the petitioner.
21.2.2 The Tribunal has completely ignored the service record of the
petitioner, especially the gradings given to him in his ACRs, which
vouchsafe the fact that his integrity was beyond doubt. A judgment
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which eschews from consideration relevant factors, or takes into
consideration irrelevant material, is perverse, as held by the Supreme
Court in S.R. Tewari v UOI30:
“30. The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring or
excluding relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may also be said to be
perverse if it is ‘against the weight of evidence’, or if the finding so
outrageously defies logic as to suffer from the vice of irrationality.
If a decision is arrived at on the basis of no evidence or thoroughly
unreliable evidence and no reasonable person would act upon it,
the order would be perverse. But if there is some evidence on
record which is acceptable and which could be relied upon, the
conclusions would not be treated as perverse and the findings
would not be interfered with. (vide Rajinder Kumar Kindra v
Delhi Administration31, Gamini Bala Koteswara Rao v State of
A.P.32 and Babu v State of Kerala33.)”
Applying this test, the judgment of the Tribunal in the case of Ajay
Kumar Sharma is unquestionably perverse as it ignores the service
record of the petitioner, including his performance, as reflected in his
ACRs and takes into account the two CVC cases pending against the
petitioner. There is no reference in the order to the nature of the two
CVC cases. One of those cases pertinently was of 15 years’ vintage
before the date of the order of compulsory retirement. Besides, neither
of the cases had resulted even in the issuance of a charge-sheet to the
petitioner. It is difficult to understand, therefore, how the CVC cases
could be treated as “pending”. Disciplinary proceedings, it is well
settled, commence only from the issuance of a charge-sheet. Prior
thereto, any allegations against an officer are merely in the realm of
unsubstantiated doubts. Reliance on the said “CVC cases” without
30 (2013) 6 SCC 602
31 (1984) 4 SCC 635
32 (2009) 10 SCC 636
33 (2010) 9 SCC 189
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even referring to the nature of the cases or the allegations therein,
amounts, therefore, to reliance on inadmissible and irrelevant
material. The judgment of the Tribunal, therefore, suffers from
perversity.
21.3 The decision in S.K. Chauhan‘s case
21.3.1 The same infirmity, in our view, plagues the judgment dated 9
April 2021 passed by the Tribunal in the case of S K Chauhan. Here
too, the Tribunal has relied on entirely irrelevant material and has, in
fact, gone to the extent of relying on material which does not even
form part of the record, the nature of which remains undisclosed to
anyone. The reasoning of the Tribunal, in its order in the case of S K
Chauhan, is contained in paras 20 to 23 of the impugned order. The
Tribunal first relies on the fact that eight departmental actions had
been initiated against the petitioner, merely glossing over the fact that
of eight cases, five were dropped and in the sixth, the proceedings
stand stayed by the Tribunal itself. The remaining two cases,
culminated in orders of penalty issued 13 years prior to the decision to
compulsorily retire the petitioner. Even of these two, only one
involved imposition of major penalty, which, too, was of reduction in
the scale of pay by one stage for one year with cumulative effect. That
penalty would also have been minor, but for the fact it was awarded
with cumulative effect.
21.3.2 The cases which were dropped can obviously have no value or
relevance while considering the case of the officer of the compulsory
retirement. A case which is dropped is dropped. It is as though the
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proceedings never commenced. Rather, subjection in a given case of
an officer to charge-sheet after charge-sheet, which do not result in
any punishment may, in a given case, even amount to harassment.
21.3.3 Even more astonishing is the very next observation in para 20
of the impugned order of the Tribunal to the effect that “most of these
cases if not all, related to integrity issues”. The source of this finding,
on the part of the Tribunal, is entirely unknown and the findings itself
must, therefore, be treated as vitiated by complete non-application of
mind. There is nothing to indicate that any of the charge-sheets issued
to the petitioner, except the charge-sheet dated 31.08.2006 which
culminated in the imposition of penalty of a punishment of reduction
of pay by one stage for a period of one year with cumulative effect,
involved any allegation of corruption or lack of integrity. Even in this
isolated charge-sheet, the finding of connivance between the
petitioner and the builders/owners was held by the IO not to have been
proved and the decision of the IO in that regard was affirmed by the
DA. There is, therefore, no allegation, in any of the disciplinary
proceedings of want of integrity. The finding in para 20 of the
impugned judgment, that there was material to indicate that the
integrity of the petitioner was doubtful is, therefore, unsustainable in
law and on facts.
21.3.4 The concluding observation of the Tribunal, in the said
paragraph, is also legally unsound. The Tribunal observes that the
“decision cannot be faulted on the ground of absence or inadequacy of
basis”. This observation is unsustainable in law and reflects an
incorrect understanding of the legal position. Any decision for which
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there is absence of any basis can always be faulted on that ground, as
it is thereby rendered arbitrary and violative of Article 14 of the
Constitution of India. This has been the law since the broadening of
the frontiers of Article 14 by the Supreme Court in E.P. Royappa v
State of Tamil Nadu34. The observation of the Tribunal that the
decision could not be faulted on the ground of absence of basis is,
therefore, legally untenable.
21.3.5 Proceeding to para 22 of the impugned order of the Tribunal,
while dealing with the petitioners contention that he had been graded
either “outstanding” or “very good” in all his ACRs, which have
uniformly certified his integrity as “beyond doubt”. The Tribunal
again surprisingly, observes that it was “informed by the respondents
that they had other credible inputs” about the applicant. The nature of
this information is not disclosed. The nature of the “inputs” is not
disclosed. The source of the “inputs” is also not forthcoming.
Strangely, the Tribunal goes on to reject the petitioner’s contentions
with respect to his ACRs by observing that “if the Competent
Authority had inputs about the concerned officer which went beyond
what was recorded in the ACRs by the officers restricted by the
limited knowledge under their command, the same cannot be
ignored.” There is no reference to any such inputs, beyond the ACRs,
which were available with the Competent Authority, except for the
punishment awarded to the petitioner by order dated 10 December
2007. The Tribunal too has apparently not found it necessary to
disclose the nature of the “inputs” concerned, or even to call upon the
34 (1974) 4 SCC 3
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respondents to place those “inputs” on record.
21.3.6 It is obvious, therefore, that the decision of the Tribunal in the
case of S K Chauhan is even more arbitrary than the decision in the
case of Ajay Kumar Sharma.
21.4 Both the impugned judgments are, therefore, unsustainable in
law and on facts, being vitiated by perversity in law. They have relied
on unknown and undisclosed material and even returned erroneous
findings of fact. They have eschewed from consideration relevant
material cited by the petitioners. They, therefore, cannot sustain and
are in any event liable to be set aside.
21.5 We are, however, not inclined to remand these matters for
reconsideration to the Tribunal as, in our view, requisite material on
the basis of which the claims of the petitioners could be decided is
available on record and the law in that regard is fairly well settled.
22. The legal position regarding compulsory retirement
22.1 Following the well known decision of the Supreme Court in
Baikuntha Nath Das, there is a veritable plethora of judgments of the
Supreme Court, which have considered these principles. As earlier
decisions stand noted in later decisions, it is not necessary to refer to
all the decisions on the point. We, therefore, propose to refer to the
decisions, proceeding chronologically, in Rajesh Gupta v State of J &
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K35, Nisha Priya Bhatia v UOI36, CISF v Om Prakash37 and Pramod
Kumar Bajaj. These decisions more or less consider all the earlier law
on point including the judgment in Baikuntha Nath Das.
22.2 Rajesh Gupta v State of J & K
22.2.1 While he was posted as Assistant Executive Engineer in the
Rural Engineering Wing in the Department of Agricultural
Production, Jammu and Kashmir38, three criminal cases were
registered against Rajesh Gupta, following three FIRs of 1991, 1994
and 1995. Investigations followed and the allegations in all the FIRs
were found not to be proved. In FIR 11/1995, however, there was a
recommendation to initiate departmental action against Rajesh Gupta.
No departmental action was, however, initiated. Rather, Rajesh Gupta
was promoted as Executive Engineer39 on 15 February 1996 after
completion of investigation in FIR 11/1995. He joined as EE on 6
February 2003 and worked as such till 8 May 2003.
22.2.2 During this period, the General Administration Department of
the Government of J & K constituted a Committee to consider the
cases for premature retirement in terms of Articles 226(2) and 226(3)
of the J & K Civil Services Regulations 1956. In the meanwhile, an
enquiry was going on against Rajesh Gupta on certain allegations,
resulting in the submission of an Inquiry Report on 22 July 2003 with
respect to suspected irregularities in the execution of Rural
35 (2013) 3 SCC 514
36 (2020) 13 SCC 56
37 (2022) 5 SCC 100
38 “J & K” hereinafter
39 “EE”, hereinafter
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Development Work in eleven blocks of J & K. The findings of the IO
in that regard stand thus noted in paras 6 and 7 of the judgment of the
Supreme court:
“6. As noticed earlier, the appellant was working as the
Executive Engineer at Jammu at the relevant time. Therefore,
during the performance of his official duty, he was required to
issue technical sanctions, approve estimates and allot work to
mates as well as conduct test checks of the works allotted by the
Block Development Officer. The conclusion recorded by the
inquiry officer is as under:
“The Executive Engineer, Rural Engineering Wing, Jammu
has also confessed having accorded such sanctions on the
spot. All this clearly indicates that no proper records have
been maintained by that office and some sanctions have
been issued out of record. No record/register of bills/test
checks has been maintained.
Regarding accord of backdated technical sanctions and
delays, it could not be established with evidence that there
existed some backdated technical sanctions or there were
delays in accord of technical sanctions and clearance of
bills. However, the casual and haphazard manner of
maintenance of records could be a probable pointer towards
the direction.”
7. The inquiry officer further records that the Block
Development Officers have taken up a number of works without
technical sanctions which was contrary to the standing rules
governing execution of work. The inquiry officer further observed
that the Executive Engineer, REW, Jammu i.e., the appellant, has
not maintained the proper record of technical sanctions and test
checks. Non-maintenance of the important records has resulted in
mismanagement owing to the issue of technical sanctions not
adopting a proper procedure for the execution of works and test
checks, etc. It is a matter of record that even though this report was
submitted on 22-7-2003, no action was taken on the basis thereof.
22.2.3 The Supreme Court noted that Rajesh Gupta had 24 years of
spotless service to his credit. For the year 1997-1998, he was graded
as a very good officer and his integrity was graded as “excellent”.
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Similar gradings were granted to Rajesh Gupta regarding his
performance and integrity for the years 1998-1999, 1999-2000. In
2000-2001, he was graded as a “good officer” with “good integrity”.
Even in future years, he was graded as a “good” or a “very good
officer” and it was specifically noted that nothing adverse regarding
his integrity had come to notice. These points have been thus noted in
para 8 of its judgment :
“8. We may also notice at this stage that the appellant had a
spotless service record throughout 24 years of service. In the
annual performance report for the period 1-4-1997 till 31-3-1998,
his work has been assessed as “Good”. The reviewing authority has
graded the appellant as a “Very Good Officer”. Against the column
of integrity, the remark is “Excellent”. Similarly, for the year 1998-
1999, he was assessed as “Good Officer” and having “Excellent”
integrity. In the annual performance report for the year 1999-2000
again his integrity is said to be “Excellent”. He has been assessed
as a very capable and efficient officer. The overall assessment
given by the reviewing authority is “A very good officer”. For the
year 2000-2001, the annual performance report again records that
the appellant is “A good officer” with good integrity. A separate
assessment was given on 12-3-2005 for the period 27-10-2001 to
29-7-2002 and thereafter from 23-10-2002 till 23-12-2002. This
annual performance report was recorded by the Deputy
Commissioner, Jammu for the period of 11 months. In the
aforesaid two tenures, the work and conduct of the appellant was
found to be good. It is also recorded that no complaint was brought
to the notice of the reporting officer. For the year 2003-2004
against the column integrity, it is mentioned that “nothing against
came in notice”. The reporting officer has said “he is a very good
field officer”. The reviewing officer assessed the appellant as “An
outstanding officer”.”
22.2.4 By order dated 26 April 2005, following recommendations of
a High Powered Review Committee constituted for the purpose,
Rajesh Gupta was prematurely retired. The basis for this decision was
to be found in para 5 of the recommendations of the Review
Committee. It was alleged by the Rural Development Department that
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the officer was suspected of having issued back dated sanctions for
execution of departmental works and of passing of bills and estimates,
in connection with which a Departmental Enquiry had been ordered
on 22 May 2003. It was based on these recommendations that the
order of compulsory retirement was passed against Rajesh Gupta.
22.2.5 Rajesh Gupta challenged the decision to compulsorily retire
him from service before the High Court of Jammu & Kashmir. The
writ petition was dismissed by a learned Single Judge and the appeal,
against the decision, was also dismissed by the Division Bench.
Rajesh Gupta, therefore, appealed to the Supreme Court.
22.2.6 The findings of the Supreme Court are contained in the
following paragraphs from the judgment, in which the earlier
decisions in Baikuntha Nath Das, Nand Kumar Verma v State of
Jharkhand40, State of Gujarat v Umed Bhai M Patel, Jugal Chander
Setia v State of Assam41 and Officers Association v Allahabad
Bank42: were noted:
“20. The principles on which a government servant can be
ordered to be compulsorily retired were authoritatively laid down
by this Court in Baikuntha Nath Das in para 34, the principles
have been summed up as follows:
“34. The following principles emerge from the above
discussion:
(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of
misbehaviour.
40 (2012) 3 SCC 580
41 (2003) 4 SCC 59
42 (1996) 4 SCC 504
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(ii) The order has to be passed by the Government on
forming the opinion that it is in the public interest to retire a
government servant compulsorily. The order is passed on
the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the
context of an order of compulsory retirement. This does not
mean that judicial scrutiny is excluded altogether. While
the High Court or this Court would not examine the matter
as an appellate court, they may interfere if they are satisfied
that the order is passed (a) mala fide or (b) that it is based
on no evidence or (c) that it is arbitrary–in the sense that
no reasonable person would form the requisite opinion on
the given material; in short, if it is found to be a perverse
order.
(iv) The Government (or the Review Committee, as the
case may be) shall have to consider the entire record of
service before taking a decision in the matter–of course
attaching more importance to record of and performance
during the later years. The record to be so considered would
naturally include the entries in the confidential
records/character rolls, both favourable and adverse. If a
government servant is promoted to a higher post
notwithstanding the adverse remarks, such remarks lose
their sting, more so, if the promotion is based upon merit
(selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to
be quashed by a court merely on the showing that while
passing it uncommunicated adverse remarks were also
taken into consideration. That circumstance by itself cannot
be a basis for interference.
Interference is permissible only on the grounds mentioned
in (iii) above. This aspect has been discussed in paras 30 to
32 above.”
21. The aforesaid principles have been re-examined and
reiterated by this Court in Nand Kumar Verma. The principles
have been restated as follows:
“34. It is also well settled that the formation of opinion
for compulsory retirement is based on the subjective
satisfaction of the authority concerned but such satisfaction
must be based on a valid material. It is permissible for the
courts to ascertain whether a valid material exists or
otherwise, on which the subjective satisfaction of the
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administrative authority is based. In the present matter,
what we see is that the High Court, while holding that the
track record and service record of the appellant was
unsatisfactory, has selectively taken into consideration the
service record for certain years only while making extracts
of those contents of the ACRs. There appears to be some
discrepancy. We say so for the reason that the appellant has
produced the copies of the ACRs which were obtained by
him from the High Court under the Right to Information
Act, 2005 and a comparison of these two would positively
indicate that the High Court has not faithfully extracted the
contents of the ACRs.
*****
36. The material on which the decision of the
compulsory retirement was based, as extracted by the High
Court in the impugned judgment, and material furnished by
the appellant would reflect that totality of relevant materials
were not considered or completely ignored by the High
Court. This leads to only one conclusion that the subjective
satisfaction of the High Court was not based on the
sufficient or relevant material. In this view of the matter,
we cannot say that the service record of the appellant was
unsatisfactory which would warrant premature retirement
from service. Therefore, there was no justification to retire
the appellant compulsorily from service.”
22. In State of Gujarat v Umedbhai M. Patel : the same
principles were reiterated in the following words:
“11. The law relating to compulsory retirement has now
crystallised into definite principles, which could be broadly
summarised thus:
(i) Whenever the services of a public servant are no
longer useful to the general administration, the officer can
be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is
not to be treated as a punishment coming under Article 311
of the Constitution.
(iii) For better administration, it is necessary to chop off
dead wood, but the order of compulsory retirement can be
passed after having due regard to the entire service record
of the officer.
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(iv) Any adverse entries made in the confidential record
shall be taken note of and be given due weightage in
passing such order.
(v) Even uncommunicated entries in the confidential
record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be
passed as a short cut to avoid departmental enquiry when
such course is more desirable.
(vii) If the officer was given a promotion despite adverse
entries made in the confidential record, that is a fact in
favour of the officer.
(viii) Compulsory retirement shall not be imposed as a
punitive measure.”
*****
24. In Jugal Chandra Saikia : this Court reiterated the
principles in the following words:
“6. … It cannot be disputed that the passing of an order of
compulsory retirement depends on the subjective
satisfaction of the competent authority, of course on
objective consideration. Unless it is shown that the order of
compulsory retirement was passed arbitrarily and without
application of mind or that such formation of opinion to
retire compulsorily was based on no evidence or that the
order of compulsory retirement was totally perverse, the
court cannot interfere.”
Examining the record of the appellant therein and the
material that was placed before the Screening Committee,
the High Court as well as this Court in Jugal Chandra
case came to the conclusion that on an objective
consideration of the material on the record it was not
possible to accept the argument that the Screening
Committee had acted only on the basis of the report of the
Rao Committee. It was found that the recommendations of
the Screening Committee were based on relevant material.
25. In Allahabad Bank case this Court examined whether the
order of compulsory retirement, passed in that case, cast a stigma
on Appellant 2. The impugned order therein had recited that there
was “want of application to the bank’s work and lack of potential”
and “he has also been found not dependable”. It was the case of
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Appellant 2 that the aforesaid expressions were stigmatic as they
cast aspersions on his conduct, character and integrity. The High
Court rejected the plea of Appellant 2 on the ground that the
recitals do not cast any stigma but only assess the work of
Appellant 2 for determining the issue of his compulsory retirement.
In these circumstances, it was observed that the object of
compulsory retirement is to weed out the dead wood in order to
maintain efficiency in the service and also to dispense with the
services of those whose integrity is doubtful, so as to preserve
purity in the administration. The order of compulsory retirement
was distinguished from the order of dismissal and removal, as it
does not inflict any punishment on the government servant. It only
deprives the government servant of the opportunity to remain in
service till the age of superannuation. Therefore, the order of
compulsory retirement differs from an order of dismissal or
removal both in its nature and consequence. However, in case it is
found that the order is stigmatic it would be treated as an order of
punishment, which cannot be passed without complying with the
provisions of Article 311(2) and the rules of natural justice. Upon
examination of a large body of case law, it was observed that the
order of compulsory retirement does not cast a stigma on the
government servant. But if the order contains a statement casting
aspersion on his conduct or character, then the court will treat the
order as an order of punishment, attracting the provisions of Article
311(2) of the Constitution. In the facts of that case, it was
concluded that the two recitals contained in the order of premature
retirement had been made in relation to the work of Appellant 2
and not for any other purpose. Therefore, the court declined to
interfere with the order of the High Court.
26. Examining the fact situation in this case on the basis of the
aforesaid principles, it becomes evident that the recommendation
made by the High-Powered Committee was indubitably arbitrary.
*****
28. During the course of the submissions before us, the learned
counsel for the State of Jammu and Kashmir accepted that there
was no material with regard to properties at Sl. Nos. 1 to 5.
Therefore, we shall say no more about the same. With regard to the
properties at Sl. Nos. 6 and 7, Mr Garg, learned counsel for the
appellant pointed out that during the pendency of the letters patent
appeal in the High Court, the respondents were directed to place on
record the findings recorded by the Special Investigation Team
which was constituted for carrying detailed investigation into the
question as to whether the petitioner was in possession of the assets
mentioned in the report of the Additional DGP dated 19-10-2004.
The report dated 1-7-2010 submitted by the Joint Director
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(Prosecution) was placed on record of the High Court along with
an affidavit. The report with regard to the aforesaid two properties
is as under:
“3. Two kanals of land at Trikuta Nagar Extension,
Jammu:
The land/plots were found purchased by Shri Devi
Dutt Mal Gupta (father-in-law of the subject
officer), who subsequently gifted it to his grandson
Rahul Gupta, who happens to be the son of Rajesh
Gupta (subject officer) in the year 2003.
4. Three kanals of land at Greater Kailash, Jammu:
This piece of land along with 1 kanal and 6 marlas have
been purchased by one Shri Vijay Kumar from the actual
owners and stands mutated since in the name of purchaser.
This asset as per revenue records was found not attributable
to the subject officer.”
29. The report also does not indicate that there is any
irregularity in the bank accounts maintained by the appellant. The
affidavit filed on behalf of the State of Jammu and Kashmir clearly
shows that according to the Vigilance Organisation, three first
information reports bearing Nos. 49 of 1991, 11 of 1995 and 63 of
1994 were registered by the State Vigilance Organisation against
the appellant when he was posted as Executive Engineer (REW,
Kathua). Upon investigation, all the FIRs were found to be “not
proved”. However, recommendation was made to initiate
departmental action against the officer. In spite of the aforesaid
recommendation, it has not been disputed before us, that no
departmental action was ever initiated against the appellant. In fact,
after the completion of the investigation into the FIRs, the
appellant was promoted to the post of Executive Engineer on 15-
12-1996. Therefore, it can be safely concluded that there were no
material before the High-Powered Committee to conclude that the
officer possessed assets beyond his known source of income.
30. This now takes us to the other material on the basis of
which the recommendation has been made by the High-Powered
Committee. It has been noticed by us earlier that the appellant was
required, in the performance of his official duties, to recommend
the sanctioning of technical approval to the construction of works
of various projects. The allegation with regard to issuing backdated
technical sanctions was duly inquired into. The conclusion
ultimately reached by the inquiry officer noticed in the earlier part
of the order indicates that at best the appellant acted in a casual and
haphazard manner in the maintenance of records. Such negligence
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on the part of the appellant cannot per se lead to the conclusion that
the appellant was acting in such a manner with an ulterior motive.
The conclusions reached by the High-Powered Committee also do
not co-relate to the assessment of work and integrity of the
appellant in the annual performance report. As noticed earlier, in
all the annual performance reports, the officer has been rated “Very
Good”, “Excellent” and even “Outstanding”
31. In view of the aforesaid, the conclusion is inescapable, that
the order passed by the State Government suffers from the vice of
arbitrariness. The High Court erred in arriving at conclusions
which were not borne out by the record produced before the High
Court. In view of the settled law, it is not possible for us to uphold
the judgments of the Single Judge as also of the Division Bench.
32. Consequently, the appeal is allowed, the impugned order of
premature retirement of the appellant dated 26-4-2005 is quashed
and set aside. It is brought to our notice that the appellant has still
not reached the age of superannuation. He is, therefore, directed to
be reinstated in service. In view of the fact that the appellant has
not challenged the order of premature retirement on the ground that
the action taken by the Government was mala fide, it would not be
appropriate in this case, to follow the normal rule of grant of full
back wages on reinstatement. We, however, direct that the
appellant shall be paid 30% of the back wages from the date of
order of premature retirement till reinstatement. He shall not be
entitled to any interest on the back wages.”
22.2.7 The Supreme Court, thus, held that there was no sufficient
material to justify the decision to compulsorily retire Rajesh Gupta
and therefore, allowed the appeal.
22.3 CISF v Om Prakash
22.3.1 Head Constable Om Prakash was compulsorily retired under
FR 56(j) read with Rule 48(1)(b) of the CCS (Pension) Rules 1972,
after completion of 33 years of service. He challenged the said
decision by way of a writ petition to this Court which was allowed by
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a Division Bench by judgment dated 14 October 2011 (Om Prakash v
CISF43).
22.3.2 Aggrieved thereby, the CISF appealed to the Supreme Court.
22.3.3 This Court proceeded on the premises that the decision to
compulsorily retire Om Prakash was based on certain penalties
awarded to him in 2000, whereafter he had been promoted as Head
Constable. Penalties imposed prior to the promotion of Om Prakash,
according to the Division Bench of this Court, could not be taken into
account as the basis to compulsorily retire him from service. The
ACRs of Om Prakash were of greater significance. This Court held
that the authorities ought to have concentrated on Om Prakash’s ACRs
for the preceding five years. The ACRs from 1990 till 2009 were all
graded either “good” or “very good”. Though the ACR for the year
2010 was graded “average”, it was not communicated to Om Prakash.
The Division Bench, therefore, held that the 2010 ACR could not be
taken into consideration to hold that Om Prakash was dead wood.
22.3.4 The Supreme Court held, in appeal, thus:
“4. This Court approved the earlier judgment of this Court
in Union of India v M.E. Reddy44 wherein it was held as under:
“12. An order of compulsory retirement on one hand causes
no prejudice to the government servant who is made to lead
a restful life enjoying full pensionary and other benefits and
on the other gives a new animation and equanimity to the
services. The employees should try to understand the true43 2011 SCC Online Del 4388
44 (1980) 2 SCC 15
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spirit behind the rule which is not to penalise them but
amounts just to a fruitful incident of the service made in the
larger interest of the country. Even if the employee feels that
he has suffered, he should derive sufficient solace and
consolation from the fact that this is his small contribution to
his country, for every good cause claims its martyr.”
5. We find that the High Court has completely misdirected
itself while setting aside the order of premature retirement of the
writ petitioner. The writ petitioner has been awarded number of
punishments prior to his promotion including receiving illegal
gratification from a transporter while on duty in the year 1993.
There are also allegations of absence from duty and overstaying of
leave. After promotion, a punishment of four days fine was
imposed on the charge of sleeping on duty and two days’ fine was
imposed for overstayed from joining time. Apart from the said
punishments, the writ petitioner has a mixed bag of ACRs such as
average, below average, satisfactory good and very good. In the
last 5 years, he has been graded average for the period 1-1-2010 to
31-12-2010.
6. After the judgment in Baikuntha Nath Das, a three-Judge
Bench in a judgment reported as Posts and Telegraphs Board v
C.S.N. Murthy : held that the courts would not interfere with the
exercise of the power of compulsory retirement if arrived at bona
fide and on the basis of material available on record. The Court
held as under:
“5. … Whether the conduct of the employee is such as to
justify such a conclusion is primarily for the departmental
authorities to decide. The nature of the delinquency and
whether it is of such a degree as to require the compulsory
retirement of the employee are primarily for the
Government to decide upon. The courts will not interfere
with the exercise of this power, if arrived at bona fide and
on the basis of material available on the record. No mala
fides have been urged in the present case. The only
suggestion of the High Court is that the record discloses no
material which would justify the action taken against the
respondent. We are unable to agree. In our opinion, there
was material which showed that the efficiency of the
petitioner was slackening in the last two years of the period
under review and it is, therefore, not possible for us to fault
the conclusion of the department as being mala fide,
perverse, arbitrary or unreasonable.”
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7. A three-Judge Bench of this Court reported as Union of
India v Dulal Dutt45 ,examined the order of compulsory retirement
of a Controller of Stores in Indian Railways. It was held that an
order of compulsory retirement is not an order of punishment. It is
a prerogative of the Government but it should be based on material
and has to be passed on the subjective satisfaction of the
Government and that it is not required to be a speaking order. This
Court held as under:
“18. It will be noticed that the Tribunal completely erred in
assuming, in the circumstances of the case, that there ought
to have been a speaking order for compulsory retirement.
This Court, has been repeatedly emphasising right
from R.L. Butail v Union of India46 , and Union of
India v J.N. Sinha, that an order of a compulsory
retirement is not an order of punishment. It is actually a
prerogative of the Government but it should be based on
material and has to be passed on the subjective satisfaction
of the Government. Very often, on enquiry by the Court the
Government may disclose the material but it is very much
different from the saying that the order should be a
speaking order. No order of compulsory retirement is
required to be a speaking order. From the very order of the
Tribunal it is clear that the Government had, before it, the
report of the Review Committee yet it thought it fit of
compulsorily retiring the respondent. The order cannot be
called either mala fide or arbitrary in law.”
8. In another judgment reported as Harijan and Tribal
Welfare Deptt. V Nityananda Pati47, the order of the High Court
setting aside the compulsory retirement for the reason that certain
uncommunicated adverse remarks were taken into consideration
was set aside by this Court
9. In Union of India v V.P. Seth48, relying upon Baikuntha
Nath Das and other judgments, it was held as under:
“3. These principles were reiterated with approval in the
subsequent decision. It would, therefore, seem that an order
of compulsory retirement can be made subject to judicial
review only on grounds of mala fides, arbitrariness or
perversity and that the rule of audi alteram partem has no
application since the order of compulsory retirement in45 (1993) 2 SCC 179
46 (1970) 2 SCC 876
47 1993 Supp (2) SCC 391
48 1994 SCC (L&S) 1052
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such a situation is not penal in nature. The position of law
having thus been settled by two decisions of this Court, we
are afraid that the order of the Tribunal cannot be sustained
as the same runs counter to the principles laid down in the
said two decisions.”
10. A three-Judge Bench of this Court in a judgment reported
as State of Punjab v Gurdas Singh49 ,considered the argument that
the order of compulsory retirement was based on material which
was non-existent inasmuch as there were no adverse remarks
against him and if there were any such remarks, it should have
been communicated to him. This Court held as under:
“11. … Before the decision to retire a government servant
prematurely is taken the authorities are required to consider
the whole record of service. Any adverse entry prior to
earning of promotion or crossing of efficiency bar or
picking up higher rank is not wiped out and can be taken
into consideration while considering the overall
performance of the employee during whole of his tenure of
service whether it is in public interest to retain him in the
service. The whole record of service of the employee will
include any uncommunicated adverse entries as well.”
11. In State of U.P. v Raj Kishore Goel50 , the order of the
High Court setting aside the order of compulsory retirement was
set aside when the order of compulsory retirement was on account
of uncommunicated ACR.
12. In the judgment reported as Rajasthan SRTC v Babu Lal
51
Jangir , the High Court had taken into consideration adverse
entries for the period 12 years prior to premature retirement. This
Court held that Brij Mohan Singh Chopra v State of Punjab52,
was overruled only on the second proposition that an order of
compulsory retirement is required to be passed after complying
with the principles of natural justice. This Court also considered
the “washed-off theory” i.e., the remarks would be wiped off on
account of such record being of remote past. Reliance was placed
upon a three-Judge Bench judgment of this Court reported as Pyare
Mohan Lal v State of Jharkhand53 , and it was observed that:
49 (1998) 4 SCC 92
50 (2001) 10 SCC 183
51 (2013) 10 SCC 551
52 (1987) 2 SCC 188
53 (2010) 10 SCC 693
54 (2013) 10 SCC 551
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“22. It clearly follows from the above that the clarification
given by a two-Judge Bench judgment in Badrinath55 : is
not correct and the observations of this Court in Gurdas
Singh56: to the effect that the adverse entries prior to the
promotion or crossing of efficiency bar or picking up
higher rank are not wiped off and can be taken into account
while considering the overall performance of the employee
when it comes to the consideration of case of that employee
for premature retirement.
23. The principle of law which is clarified and stands
crystallised after the judgment in Pyare Mohan Lal v State
of Jharkhand is that after the promotion of an employee
the adverse entries prior thereto would have no relevance
and can be treated as wiped off when the case of the
government employee is to be considered for further
promotion. However, this “washed-off theory” will have no
application when the case of an employee is being assessed
to determine whether he is fit to be retained in service or
requires to be given compulsory retirement. The rationale
given is that since such an assessment is based on “entire
service record”, there is no question of not taking into
consideration the earlier old adverse entries or record of the
old period. We may hasten to add that while such a record
can be taken into consideration, at the same time, the
service record of the immediate past period will have to be
given due credence and weightage. For example, as against
some very old adverse entries where the immediate past
record shows exemplary performance, ignoring such a
record of recent past and acting only on the basis of old
adverse entries, to retire a person will be a clear example of
arbitrary exercise of power. However, if old record pertains
to integrity of a person then that may be sufficient to justify
the order of premature retirement of the government
servant.”
13. There are numerous other judgments upholding the orders
of premature retirement of judicial officers inter alia on the ground
that the judicial service is not akin to other services. A person
discharging judicial duties acts on behalf of the State in discharge
of its sovereign functions. Dispensation of justice is not only an
onerous duty but has been considered as discharge of a pious duty,
therefore, it is a very serious matter. This Court in Ram Murti
Yadav v State of U.P.57 held as under:
55 Badrinath v State of T.N., (2000) 8 SCC 395
56 State of Punjab v Gurdas Singh, (1998) 4 SCC 92
57 (2020) 1 SCC 801
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“6. … The scope for judicial review of an order of
compulsory retirement based on the subjective satisfaction
of the employer is extremely narrow and restricted. Only if
it is found to be based on arbitrary or capricious grounds,
vitiated by mala fides, overlooks relevant materials, could
there be limited scope for interference. The court, in
judicial review, cannot sit in judgment over the same as an
appellate authority. Principles of natural justice have no
application in a case of compulsory retirement.”
14. Thus, we find that the High Court has not only misread the
judgment of this Court in Baikuntha Nath Das but wrongly
applied the principles laid down therein. The adverse remarks can
be taken into consideration as mentioned in the number of
judgments mentioned above. There is also a factual error in the
order of the High Court that there are no adverse remarks and that
the ACRs for the year 1990 till the year 2009 were either good or
very good. In fact, the summary of ACRs as reproduced by the
High Court itself shows average, satisfactory and in fact below
average reports as well.
15. The entire service record is to be taken into consideration
which would include the ACRs of the period prior to the
promotion. The order of premature retirement is required to be
passed on the basis of entire service records, though the recent
reports would carry their own weight.”
22.4 Pramod Kumar Bajaj
22.4.1 We may observe, here, that Pramod Kumar Bajaj represents
the latest exposition of law, by the Supreme Court, on the issue of
compulsory retirement, from what we could glean from our study.
22.4.2 Pramod Kumar Bajaj58 was a Permanent Commissioned
Officer inducted in 1980. Consequent on his qualifying the civil
services examination in 1989, Bajaj was allocated to the 1990 Batch
of the Indian Revenue Service. He earned successive promotions till,
58 “Bajaj” hereinafter
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in 2012, he joined as Commissioner in the Department of Income Tax.
22.4.3 On 29 November 2017, a vigilance inspection was carried out
in the office of Bajaj. This resulted in the issuance, to him, of a show
cause notice dated 31 January 2018. Prior thereto, on 21 January
2018, vigilance clearance, earlier granted to Bajaj, was withheld by
the department.
22.4.4 Bajaj challenged these decisions by way of two OAs filed
before the Tribunal. The Tribunal, by two interim orders, directed that
the show cause notices issued to Bajaj, and the withholding of his
vigilance clearance, would not impede his consideration for
appointment as Member, Income Tax Appellate Tribunal59. This
decision was challenged before the Supreme Court, by the UOI
unsuccessfully.
22.4.5 In the meanwhile, Bajaj was placed on the “agreed list” on 11
April 2018. The “agreed list” is a list of gazetted officers of suspect
integrity. Aggrieved thereby, Bajaj re-approached the Tribunal.
22.4.6 By a common judgment dated 6 March 2019, the Tribunal
allowed the OAs filed by Bajaj and quashed the inclusion of his name
in the agreed list and consequential proceedings as well as the
decision to deny him vigilance clearance. The Tribunal also directed
that his name be forwarded for selection/appointment to the post of
Member, ITAT. The judgment of the Tribunal was challenged before
59 “ITAT” hereinafter
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the High Court by the Union of India by way of a writ petition.
Though no interim order was passed by the High Court, the Union of
India did not implement the judgment of the Tribunal.
22.4.7 In the meanwhile, Bajaj was issued a charge-sheet on 13 June
2019 as a result, his case for consideration for promotion to the post of
Principal Commissioner was placed in a sealed cover by a DPC,
which convened for the purpose, in July 2019. Bajaj challenged the
disciplinary proceedings by way of a writ petition before the High
Court, which passed certain orders of stay.
22.4.8 While the proceedings were thus pending, Bajaj was
compulsorily retired from service on 27 September 2019, around three
months short of his superannuation in January 2020. Bajaj represented
against the said order. His representation was also rejected by the
Representation Committee by order dated 2 January 2020.
22.4.9 Bajaj challenged the order of compulsory retirement and the
rejection of his representation, thereagainst, by the Representation
Committee, before the Tribunal. The challenge was dismissed by the
Tribunal vide judgment dated 9 December 2020. The decision of the
Tribunal was upheld by the High Court60.
22.4.10 Aggrieved thereby, Bajaj approached the Supreme Court.
60 Pramod Kumar Bajaj v UOI
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22.4.11 The Supreme Court exhaustively referred to all the earlier
decisions on the point. We may reproduce the following passages
from the judgment:
“19. The object of compulsory retirement of a government
servant was highlighted by this Court in Officers’
Assn. v Allahabad Bank in the following words:
“5. The power to compulsorily retire a government
servant is one of the facets of the doctrine of pleasure
incorporated in Article 310 of the Constitution. The object
of compulsory retirement is to weed out the dead wood in
order to maintain efficiency and initiative in the service and
also to dispense with the services of those whose integrity is
doubtful so as to preserve purity in the administration.
Generally speaking, Service Rules provide for compulsory
retirement of a government servant on his completing
certain number of years of service or attaining the
prescribed age. His service record is reviewed at that stage
and a decision is taken whether he should be compulsorily
retired or continued further in service. There is no levelling
of a charge or imputation requiring an explanation from the
government servant. While misconduct and inefficiency are
factors that enter into the account where the order is one of
dismissal or removal or of retirement, there is this
difference that while in the case of retirement they merely
furnish the background and the enquiry, if held — and there
is no duty to hold an enquiry — is only for the satisfaction
of the authorities who have to take action, in the case of
dismissal or removal they form the very basis on which the
order is made, as pointed out by this Court in Shyam Lal v
State of U.P.61 and State of Bombay v Saubhagchand M.
Doshi62. Thus, by its very nature the power to compulsorily
retire a government servant is distinct and separate from the
power to punish him by way of removal, dismissal, etc. for
misconduct. A government servant who is compulsorily
retired does not lose any part of the benefit that he has
earned during service. Thus, compulsory retirement differs
both from dismissal and removal as it involves no penal
consequences.
*****
61 (1954) 1 SCC 572
62 AIR 1957 SC 892
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17. The above discussion of case-law makes it clear that
if the order of compulsory retirement casts a stigma on the
government servant in the sense that it contains a statement
casting aspersion on his conduct or character, then the court
will treat that order as an order of punishment, attracting
provisions of Article 311(2) of the Constitution. The reason
is that as a charge or imputation is made the condition for
passing the order, the court would infer therefrom that the
real intention of the Government was to punish the
government servant on the basis of that charge or
imputation and not to exercise the power of compulsory
retirement. But mere reference to the rule, even if it
mentions grounds for compulsory retirement, cannot be
regarded as sufficient for treating the order of compulsory
retirement as an order of punishment. In such a case, the
order can be said to have been passed in terms of the rule
and, therefore, a different intention cannot be inferred. So
also, if the statement in the order refers only to the
assessment of his work and does not at the same time cast
an aspersion on the conduct or character of the government
servant, then it will not be proper to hold that the order of
compulsory retirement is in reality an order of punishment.
Whether the statement in the order is stigmatic or not will
have to be judged by adopting the test of how a reasonable
person would read or understand it.”
(emphasis supplied)
20. In Union of India v J.N. Sinha it has been observed that:
Fundamental Rule 56(j) does not in terms require that any
opportunity should be given to the government servant concerned
to show cause against his compulsory retirement. It says that the
appropriate authority has the absolute right to retire a government
servant if it is of the opinion that it is in the public interest to do so.
If that authority bona fide forms that opinion the correctness of that
opinion cannot be challenged before courts though it is open to an
aggrieved party to contend that the requisite opinion has not been
formed or the decision is based on collateral grounds or that it is an
arbitrary decision.
21. On similar lines were the observations made by this Court
in Swami Saran Saksena v State of U.P.63:
“3. Several contentions have been raised in this appeal
by the appellant, who appears in person. In our judgment,
one of them suffices to dispose of the appeal. The63 (1980) 1 SCC 12
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contention which has found favour with us is that on a
perusal of the material on the record and having regard to
the entries in the personal file and character roll of the
appellant, it is not possible reasonably to come to the
conclusion that the compulsory retirement of the appellant
was called for. This conclusion follows inevitably from the
particular circumstances, among others, that the appellant
was found worthy of being permitted to cross the second
efficiency bar only a few months before. Ordinarily, the
court does not interfere with the judgment of the relevant
authority on the point whether it is in the public interest to
compulsorily retire a government servant. And we would
have been even more reluctant to reach the conclusion we
have, when the impugned order of compulsory retirement
was made on the recommendation of the High Court itself.
But on the material before us we are unable to reconcile the
apparent contradiction that although for the purpose of
crossing the second efficiency bar the appellant was
considered to have worked with distinct ability and with
integrity beyond question, yet within a few months
thereafter he was found so unfit as to deserve compulsory
retirement. The entries in between in the records pertaining
to the appellant need to be examined and appraised in that
context. There is no evidence to show that suddenly there
was such deterioration in the quality of the appellant’s work
or integrity that he deserved to be compulsorily retired. For
all these reasons, we are of opinion that the order of
compulsory retirement should be quashed. The appellant
will be deemed to have continued in service on the date of
the impugned order.”
22. In Baldev Raj Chadha v Union of India, emphasising the
fact that exercise of powers under Fundamental Rule 56(j) must be
bona fide and promote public interest, this Court observed that:
“The whole purpose of Fundamental Rule 56(j) is to weed
out the worthless without the punitive extremes covered by
Article 311 of the Constitution. But under the guise of
“public interest” if unlimited discretion is regarded
acceptable for making an order of premature retirement, it
will be the surest menace to public interest and must fail for
unreasonableness, arbitrariness and disguised dismissal.
The exercise of power must be bona fide and promote
public interest.
An officer in continuous service for 14 years crossing the
efficiency bar and reaching the maximum salary in the
scale and with no adverse entries at least for five years
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immediately before the compulsory retirement cannot be
compulsorily retired on the score that long years ago, his
performance had been poor, although his superiors had
allowed him to cross the efficiency bar without qualms.”
23. In Ram Ekbal Sharma v State of Bihar64 it was observed
that in order to find out whether an order of compulsory retirement
is based on any misconduct of the government servant or the said
order has been made bona fide, without any oblique or extraneous
purpose, the veil can be lifted. Following are the pertinent
observations made in the said decision:
“32. On a consideration of the above decisions the legal
position that now emerges is that even though the order of
compulsory retirement is couched in innocuous language
without making any imputations against the government
servant who is directed to be compulsorily retired from
service, the court, if challenged, in appropriate cases can
lift the veil to find out whether the order is based on any
misconduct of the government servant concerned or the
order has been made bona fide and not with any oblique or
extraneous purposes. Mere form of the order in such cases
cannot deter the court from delving into the basis of the
order if the order in question is challenged by the
government servant concerned as has been held by this
Court in Anoop Jaiswal case65. This being the position the
respondent State cannot defend the order of compulsory
retirement of the appellant in the instant case on the mere
plea that the order has been made in accordance with the
provisions of Rule 74(b)(ii) of the Bihar Service Code
which prima facie does not make any imputation or does
not cast any stigma on the service career of the appellant.
But in view of the clear and specific averments made by the
respondent State that the impugned order has been made to
compulsorily retire the appellant from service under the
aforesaid rule as the appellant was found to have committed
grave financial irregularities leading to financial loss to the
State, the impugned order cannot but be said to have been
made by way of punishment. As such, such an order is in
contravention of Article 311 of the Constitution of India as
well as it is arbitrary as it violates principles of natural
justice and the same has not been made bona fide.”
(emphasis supplied)
64 (1990) 3 SCC 504
65 Anoop Jaiswal v Union of India, (1984) 2 SCC 369
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24. In State of Orissa v Ram Chandra Das this Court observed
as follows:
“3…. It is needless to reiterate that the settled legal
position is that the Government is empowered and would
be entitled to compulsorily retire a government servant in
public interest with a view to improve efficiency of the
administration or to weed out the people of doubtful
integrity or who are corrupt but sufficient evidence was not
available to take disciplinary action in accordance with the
rules so as to inculcate a sense of discipline in the service.
But the Government, before taking the decision to retire a
government employee compulsorily from service, has to
consider the entire record of the government servant
including the latest reports.”
25. In State of Gujarat v Suryakant Chunilal Shah66, a case
where the State Government had challenged the judgment of the
Division Bench of the High Court of Gujarat that had held that the
order of compulsory retirement passed against the respondent
therein was bad, as there were no adverse entries in his
Confidential Report and his integrity was not doubtful at any stage,
this Court held thus:
“28. There being no material before the Review
Committee, inasmuch as there were no adverse remarks in
the character roll entries, the integrity was not doubted at
any time, the character roll entries subsequent to the
respondent’s promotion to the post of Assistant Food
Controller (Class II) were not available, it could not come
to the conclusion that the respondent was a man of doubtful
integrity nor could have anyone else come to the conclusion
that the respondent was a fit person to be retired
compulsorily from service. The order, in the circumstances
of the case, was punitive having been passed for the
collateral purpose of his immediate removal, rather than in
public interest.”
26. In State of Gujarat v Umedbhai M. Patel, this Court has
delineated the following broad principles that ought to be followed
in matters relating to compulsory retirement:
“11. The law relating to compulsory retirement has now
crystallised into a definite principle, which could be
broadly summarised thus:
66 (1999) 1 SCC 529
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(i) Whenever the services of a public servant
are no longer useful to the general administration,
the officer can be compulsorily retired for the sake
of public interest.
(ii) Ordinarily, the order of compulsory
retirement is not to be treated as a punishment
coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to
chop off dead wood, but the order of compulsory
retirement can be passed after having due regard to
the entire service record of the officer.
(iv) Any adverse entries made in the confidential
record shall be taken note of and be given due
weightage in passing such order.
(v) Even uncommunicated entries in the
confidential record can also be taken into
consideration.
(vi) The order of compulsory retirement shall not
be passed as a short cut to avoid departmental
enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite
adverse entries made in the confidential record, that
is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed
as a punitive measure.”
27. In Nand Kumar Verma v State of Jharkhand this Court
has once again highlighted the permissibility of ascertaining the
existence of valid material by a court for the authorities to pass an
order of compulsory retirement and observed thus:
“34. It is also well settled that the formation of opinion
for compulsory retirement is based on the subjective
satisfaction of the authority concerned but such satisfaction
must be based on a valid material. It is permissible for the
courts to ascertain whether a valid material exists or
otherwise, on which the subjective satisfaction of the
administrative authority is based. In the present matter,
what we see is that the High Court, while holding that the
track record and service record of the appellant was
unsatisfactory, has selectively taken into consideration the
service record for certain years only while making extracts
of those contents of the ACRs. There appears to be some
discrepancy.”
(emphasis supplied)
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28. In a recent judgment in Nisha Priya Bhatia v Union of
India, confronted with the question as to whether action taken
under Rule 135 of the Research and Analysis Wing (Recruitment
Cadre and Service) Rules, 1975 is in the nature of “a penalty or a
dismissal clothed as compulsory retirement” so as to attract Article
311 of the Constitution of India, this Court has held that “the real
test for this examination is to see whether the order of compulsory
retirement is occasioned by the concern of unsuitability or as a
punishment for misconduct”. For drawing this distinction, reliance
has been placed on the judgment in State of
67
Bombay v Saubhagchand M. Doshi , where a distinction was
made between an order of dismissal and order of compulsory
retirement in the following words:
“9. … Under the rules, an order of dismissal is a
punishment laid on a government servant, when it is found
that he has been guilty of misconduct or inefficiency or the
like, and it is penal in character, because it involves loss of
pension which under the rules would have accrued in
respect of the service already put in.
An order of removal also stands on the same footing as an
order of dismissal, and involves the same consequences, the
only difference between them being that while a servant
who is dismissed is not eligible for re-appointment, one
who is removed is. An order of retirement differs both from
an order of dismissal and an order of removal, in that it is
not a form of punishment prescribed by the rules, and
involves no penal consequences, inasmuch as the person
retired is entitled to pension proportionate to the period of
service standing to his credit.”
(emphasis supplied)
Examination and analysis of the case on hand
29. We may now proceed to examine the facts of the case in
hand in the light of the case laws discussed above in order to find
out as to whether the order of compulsory retirement passed by the
respondents in respect of the appellant was based on valid material
and was in public interest. First, we propose to examine the
personal file and character roll of the appellant. As per the material
placed on record, the APARs of the appellant reflect that over the
past several years, his integrity was being regularly assessed as
“Beyond doubt” and this remained the position till as late as 31-7-
2019, when his work performance was assessed for the period from
67 AIR 1957 SC 892
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1-4-2018 to 31-3-2019 and found to be up to the mark. In his
APARs for the past one decade, till the period just prior to the
order of his premature retirement, the respondents were
consistently grading the appellant as “Outstanding”. No adverse
entries were made by his superiors in the APARs of the appellant
insofar as his work performance was concerned. No aspersion was
cast either on his conduct or character during all this period. As per
the service records, his efficiency and integrity remained
unimpeachable throughout his career. The inference drawn from
the above is that the appellant’s service record being impeccable
could not have been a factor that went against him for the
respondents to have compulsorily retired him.
30. Coming next to the stand taken by the respondents that
several complaints were received against the appellant that had cast
a cloud on his integrity, it is noteworthy that the respondents have
referred to nine complaints against the appellant, stated to be
pending in the Vigilance Directorate that have been pithily
summarised by the Tribunal in a tabulated format in para 30 of its
judgment dated 6-3-2019 [Pramod Kumar Bajaj v Union of
India]. Juxtaposed against the said tabulated statement of
complaints listed by the respondents, is a separate tabulation of the
response of the appellant to each of the said complaints. For ready
reference, the two tables of contents are extracted below:
Sl. Nos. Name of officer Status
1 Shri P.K. Bajaj, Addl. Shri O.P. Jangre Charges of harassment and
CIT, Range 6(2), interference in work by subordinate
Mumbai officer Shri Jangre on Shri P.K. Bajaj--
under examination.
2. Shri P.K. Bajaj, CIT (E), Closed dated 3-5-2018
Lucknow
3. Shri P.K. Bajaj, CIT (E), Complaint made by Under examination
Lucknow Driving Training
and Scientific
Research Lucknow
in January 2016
4. Shri P.K. Bajaj, CIT (E), Shri Dharam Veer ID issued dated 13-11-2017. ID
Lucknow Kapil, IFS (Retd.), responded dated 18-11-2017--under
dated 17-10-2017 examination
5. Shri P.K. Bajaj, CIT (E), Shri Balesh Singh, ID issued dated 27-12-2017
Lucknow through
PMOPG/E2017/059
7 795 dated 17-11-
2017
6. Shri P.K. Bajaj, CIT Shri Ashok Verma, ID issued dated 8-4-2016. Reminder
(Exemption), Lucknow dated 11-5-2016. ID neither
Lucknow responded nor received back
date. Closed dated 19-7-2016
7. Shri P.K. Bajaj, CIT (E), Shri Jagat Pandey, ID issued dated 3-8-2016. Reminder
Lucknow 28/42, Civil Lines, dated 9-9-2016 letter received back
Bareilly, U.P., dated undelivered till date. Closed dated 7-
29-6-2016 10-2016.
8. Shri Pramod Bajaj, CIT Shri Ashish Rastogi, ID issued dated 25-2-2016. Reminder
(Exemption), Lucknow A 70, Gandhi Nagar, dated 11-5-2016. ID neither received
Prince Road back nor responded. Closed dated 29-
Moradabad, U.P. 8-2016.
9. Capt. P.K. Bajaj, Addl. Smt Renu Bajaj Letter dated 28-1-2015 to CIT, Ajmer
CIT w/o Capt. P.K. for providing information on case in
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Bajaj court matter. A letter to Pr. CCIT,
Jaipur for status report dated 20-1-
2016 & reminder dated 28-9-2016
sent.
Response of the appellant
Sl. Name of officer Status 5. Facts as per petitioner
Nos
1. Shri P.K. Bajaj, Shri O.P. No explanation ever called for
Addl. CIT, Jangre from petitioner in last 13 years in
this regard. Shri S.K. Jangre was
arrested by ACB/CBI on 12-12-
2015, and is under suspension.
(Annexure A-1).
2. Shri P.K. Bajaj, Blank/ Closed No details mentioned.
CIT (E), Lucknow dated 3-5-
2018
3. Shri P.K. Bajaj, Complaint Under File taken for inspection on 3-2-
CIT (E), Lucknow made by examinatio 2016 returned after 17 months on
Driving n 9-8-2017 with the remarks that
Training this record is no longer required
and and matter closed by ADG(VIG)NZ
Scientific on 10-2-2016. (Annexure A-2)
Research, (ii) NBW issued by the learned
Lucknow in CJM, Lucknow against
January complainant (Annexure A-3).
2016
4. Shri P.K. Bajaj, CIT (E), Shri ID issued Father-in-law of Mrs Naina Kapil
Lucknow Dharam dated 13- So in, IRS posted earlier in DG(V)
Veer Kapil, 11-2017, ID office Delhi.
IFS (Retd.), responded (ii) Application rejected because
dated 17- dated 18- even PAN was not provided in
10-2017 11-2017. spite of two opportunities given
under (copy of order as Annexure A-4)
examinatio
n
5. Shri P.K. Bajaj, CIT Shri Balesh ID issued No details provided by the
(E), Lucknow Singh, dated 27- respondents. No query ever
through 12-2017 raised till date.
PMOPG/E2
0
17/059779
5 dated 17-
11-2017
6. Shri P.K. Bajaj, Shri Ashok ID issued dated 8- Fictitious/pseudo
CIT (Exemption), Verma, 4-2016. Reminder anonymous complaint. Still
Lucknow Lucknow dated 11-5-2016 ID connected files taken
neither responded during inspection on 29-11-
nor received back 2017.
undelivered till
dated. Closed
dated/19-7-2016.
7. Shri P.K. Bajaj, Shri Jagat ID issued dated 3- Fictitious/pseudo
CIT (Exemption), Pandey, 8-2016. Reminder anonymous complaint still
Lucknow 28/42, Civil dated 9-9-2016. ID connected files taken
Lines, letter received back during inspection on 29-11-
Bareilly, undelivered. Closed 2017
U.P. Dated /dated 7-10-2016.
29-6-2016
8. Shri P.K. Bajaj, Shri Ashish ID issued dated 25- Fictitious/pseudo
CIT (Exemption), Rastogi, A 2-2016. Reminder anonymous complaint still
Lucknow 70, Gandhi dated 11-5-2016. ID connected files taken
Nagar, neither received during inspection on 29-11-
Prince back nor 2017.
Road, responded. Closed
Moradabad Dt/29-8-2016
, U.P.
9. Shri P.K. Bajaj, Smt Renu Letter dated 28-1- Divorced on 31-5-2008. No
Addl. CIT Bajaj w/o 2015 to CIT, Ajmer query ever raised by DGIT
Capt. P.K. for providing (V) till date but copies of
Bajaj information on Hon'ble SC/HC orders
case in court handed over to DGIT (V) on
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matter. A letter to 21-3-2018 (old settled
Pr. CCIT Jaipur for matrimonial dispute), but
status report dated still kept pending by DGIT
20-1-2016 & (V) (copy as Annexure A-5).
reminder dated 28-
9-2016 sent.
31. As can be seen from the above, out of the aforesaid nine
complaints, four complaints mentioned at Sl. Nos. 2, 6, 7 and 8 had
already been closed by the department in the year 2016-2017. With
regard to the complaint listed at Sl. No. 1, is stated to have been
levelled by another officer of the department against the appellant,
relating to harassment and interference in work. The Tribunal has
noted the submission of the appellant, which has gone unrefuted
that the Anti-Corruption Bureau of the Central Bureau of
Investigation (for short “CBI”) had at a later date, arrested the said
officer on charges of corruption. The appellant has also stated in
the remarks column that no explanation had ever been called for
from him on the said complaint, status whereof is shown as “Under
examination”. In respect of the complaints at Sl. Nos. 3 and 4, the
respondents have stated that they are “Under examination”. In
reply, the appellant has stated that the complaint at Sl. No. 3, of the
year 2016 was closed by the ADG (Vigilance) (NZ) on 10-2-2016
and the complaint at Sl. No. 4, made by a relative of an officer
within the Department, was rejected because the complainant did
not provide his PAN number despite being afforded two
opportunities. There is no rebuttal to the said assertions. Coming to
the complaint at Sl. No. 5, the Review Committee constituted by
the respondents has recorded the status of the said complaint as
having been closed on 22-1-2019. This is apparent from a perusal
of para 26 of the judgment dated 9-12-2020, passed by the
Tribunal. Now remains the complaint at Sl. No. 9, which was made
by the appellant’s ex-wife alleging bigamy, moral turpitude, etc.
against the appellant. In the remarks column, the respondents have
stated that necessary information in respect of the said court
proceedings between the parties was sought by the department. The
appellant has clarified that a decree of divorce was granted to the
parties by the court concerned and a copy of the said order was
duly supplied to the department against receipt on 21-3-2018.
32. Insofar as the matrimonial dispute of the appellant is
concerned, the material placed on record reveals that the same had
attained quietus by virtue of a settlement arrived at between him
and his estranged wife, vide settlement agreement dated 18-6-2016
recorded by the learned Mediator appointed by the Delhi High
Court Mediation and Conciliation Centre. The said settlement
agreement was duly taken on record by the Division Bench of the
High Court of Delhi vide order dated 14-7-2016 passed in MAT.
APP. (FC) Nos. 148 of 2014, 34 and 36 of 2016. Both the parties
had agreed that they would take joint steps to get their marriage
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dissolved by filing a petition before the Family Court concerned.
One of the terms and conditions of the settlement was that the
appellant would arrange a residential flat for his wife, which his
brother had agreed to purchase in her name, as a one-time
settlement towards all her claims of maintenance, alimony,
stridhan, etc. This condition was subsequently complied with and
is borne out from the sale document of the flat dated 3-10-2016
that records the fact that a sum of Rs 6,00,000 (Rupees six lakhs)
was paid by the appellant’s brother to the seller towards the sale
price of the flat.
33. Once the parties had arrived at a settlement and a decree of
divorce by mutual consent was passed by the Court concerned, the
allegations of bigamy, etc. levelled by the appellant’s wife lose
significance since the case was never taken to trial for any findings
to be returned by the Court on this aspect. In the above backdrop,
there appears no justification for the respondents to have raised the
spectre of a series of complaints received against the appellant
during the course of his service that had weighed against him for
compulsorily retiring him, more so, when these complaints were to
the knowledge of the respondents and yet, his service record
remained unblemished throughout. Nothing has been placed on
record to show a sudden decline in the work conduct of the
appellant so as to have compulsorily retired him.
34. We may now proceed to examine the background in which
vigilance clearances were initially given to the appellant and
subsequently withheld by the respondents. It is not in dispute that
in the year 2013, the appellant had applied for the post of Member,
ITAT and in the year 2014, the Selection Committee had placed
him on the top of the list of 48 selected candidates. Based on the
vigilance clearance issued by the department in August 2013 and
once again on 15-7-2015, the appellant was recommended by the
respondents to the ACC for his appointment to the subject post.
35. However, sometime later, the respondents withheld the
vigilance clearance given earlier on the ground that there was an
adverse IB report against the appellant. It is not out of place to
mention here that the aforesaid adverse IB report had also arisen
from the complaint received from the appellant’s wife during the
very same matrimonial dispute which had already been amicably
settled in court. The factum of the said settlement was well within
the knowledge of the respondents, who had stated in OM dated 15-
7-2015 that “the alleged acts of bigamy against Shri Bajaj
emanating from matrimonial dispute is not established”. Aggrieved
by the withholding of his vigilance report, the appellant had
approached the Tribunal for relief in OA No. 95 of 2016. Vide
interim order dated 10-2-2017, the Tribunal directed the
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respondents to resubmit the adverse IB report in respect of the
appellant before the Selection Committee within one month for the
said Committee to take a view in the matter. As noted earlier, the
aforesaid order dated 10-2-2017, passed by the Tribunal was
upheld by the High Court, on 30-5-2017 and affirmed by this
Court, vide order dated 15-11-2017.
36. Undeterred by the aforesaid judicial orders, the respondents
continued to withhold the vigilance clearance of the appellant, this
time claiming that there were some adverse findings against him in
an Inspection Report dated 20-4-2018 stated to have been prepared
on the basis of an inspection of the office of the appellant
conducted on 29-11-2017 and 30-11-2017 which was done within
a few days of this Court upholding the order dated 10-2-2017
passed by the Tribunal, calling upon the respondents to place his
adverse IB report before the Selection Committee, for it to take a
view in the matter. It is rather ironical that the irregularities noticed
by the respondents in the Inspection Report dated 20-4-2018, that
made them withhold the vigilance clearance of the appellant were
to their knowledge ten days before and yet they had issued a letter
dated 11-4-2018, giving him vigilance clearance.
37. It is noteworthy that the appellant had challenged the
proceedings initiated against him by the respondents on the basis of
the inspections conducted on 29-11-2017 and 30-11-2017 in OA
No. 77 of 2018. In the said proceedings, the Tribunal had passed an
interim order on 2-2-2018 directing that the said proceedings will
not come in the way of promotion, appointment and deputation
prospects of the appellant. Regardless of the above directions, the
respondents not only denied vigilance clearance to the appellant on
20-4-2018 they went a step ahead and proceeded to place his name
in the “Agreed List” i.e. the list of suspected officers. This act of
the respondents was also assailed by the appellant before the
Tribunal in OA No. 279 of 2018. Ultimately, both the captioned
original applications were collectively decided by the Tribunal in
favour of the appellant by a detailed judgment dated 6-3-2019,
which has not been stayed by any superior court.
38. Aggrieved by a separate memo dated 30-1-2018 issued by
the respondents on the basis of the aforesaid inspection of his
office conducted on 29-11-2017 and 30-11-2017 calling for his
explanation in respect of some orders passed by him in his
judicial/quasi-judicial capacity as Commissioner of Income Tax
(Exemption), the appellant had to file OA No. 332 of 2018 that was
decided by the Tribunal in his favour vide judgment dated 28-5-
2019. In its judgment, the Tribunal relied on the order dated 15-5-
2018, passed by the High Court in WP No. 13390 of 2018 (SB),
declaring that the inspection conducted by the Department was
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without jurisdiction and that there was no justification for
withholding the vigilance clearance of the appellant on the basis of
the said inspection. Noting that the memo dated 30-1-2018 issued
by the respondents calling for an explanation from the appellant
was premised on the very same inspection conducted by the
Department, the Tribunal reiterated the string of findings returned
by it in favour of the appellant in its earlier common judgment
dated 6-3-2019 (passed in OAs Nos. 137 and 279 of 2018) and
proceeded to quash the memo dated 30-1-2018 issued by the
respondents. It was further held that the said order will not
adversely impact forwarding of the name of the appellant as
Member, ITAT, in terms of the recommendations made by the
Selection Committee in its meeting held on 26-8-2018.
39. In the teeth of the series of orders passed by the Tribunal
and the High Court in favour of the appellant, the respondents
elected to withhold his vigilance clearance, thereby compelling the
appellant to file contempt petitions against the officers concerned
for non-compliance of the orders passed. Both, the High Court as
well as the Tribunal, issued notices for wilful disobedience of the
orders passed. In the proceedings before the High Court, on the one
hand, the respondents kept seeking adjournments on the ground
that steps were being taken to forward the appellant’s name to the
ACC for being processed for his appointment as Member, ITAT,
till as late as on 31-5-2019 on which date they were granted one
last opportunity for making compliances and at their request, the
matter was adjourned to 9-7-2019 and on the other hand, the
respondents slapped the appellant with a charge memorandum
dated 17-6-2019 and suspended him on 1-7-2019.
40. Having regard to the fact that the respondents did not take
the disciplinary proceedings initiated against the appellant to its
logical conclusion and instead issued an order compulsorily
retiring him, this Court does not deem it expedient to delve into the
allegations levelled in the said charge memorandum; all the same,
we have cursorily gone through the charge memorandum that
mentions three charges — one alleging that the appellant failed to
seek permission from the department to purchase a flat in relation
to the matrimonial dispute between him and his estranged wife and
the second one is in respect of the allegation of bigamy levelled
against him by his estranged wife. We have already noted earlier
that during the course of the matrimonial dispute, the parties had
arrived at a settlement and the flat that was agreed to be given to
the wife, was not purchased by the appellant but by his brother,
which fact is amply borne out from the documents placed on
record. The matrimonial dispute between the parties stood closed
on a decree of divorce being granted on the basis of mutual
consent. That the respondents were also cognizant of the said fact,
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is apparent from the contents of OM dated 15-7-2015 which
records inter alia that the said allegations levelled by the wife had
not been established. The third charge was relating to the appellant
having attended court hearings without sanctioned leave. However,
the disciplinary proceedings initiated against the appellant on 17-7-
2019 were abandoned by the respondents on the order of
compulsory retirement being passed against him in less than three
months reckoned therefrom, on 27-9-2019.”
41. The appellant has made allegations of institutional bias and
malice against the respondents on the plea that the Chairman,
CBDT who was a Member of the Review Committee, was facing
three contempt proceedings relating to the appellant’s service
dispute, wherein notices had been issued by the High Court as well
as the Tribunal. There is no doubt that rule of law is the very
foundation of a well-governed society and the presence of bias or
mala fides in the system of governance would strike at the very
foundation of the values of a regulated social order. The law
relating to mala fide exercise of power has been the subject-matter
of a catena of decisions [refer: Pratap Singh v State of
Punjab68 ; Jaichand Lal Sethia v State of W.B.69; J.D.
Srivastava v State of M.P.70 ; and Express Newspapers (P)
Ltd. v Union of India71. It has been repeatedly held that any
exercise of power that exceeds the parameters prescribed by law or
is motivated on account of extraneous or irrelevant factors or is
driven by malicious intent or is on the face of it, so patently
arbitrary that it cannot withstand judicial scrutiny, must be struck
down. In the instant case, though the appellant has levelled
allegations of institutional bias and prejudice against the
respondents, particularly against the then Chairman, CBDT who
was a Member of the Review Committee, the said officer was not
joined by the appellant as a party before the Tribunal or the High
Court, for him to have had an opportunity to clarify his stand by
filing a counter-affidavit. Hence, these allegations cannot be
looked into by this Court.
42. Dehors the aforesaid allegations of institutional bias and
malice, having perused the material placed on record, we find merit
in the other grounds taken by the appellant. It is noticed that
though FR 56(j) contemplates that the respondents have an
absolute right to retire a government servant in public interest and
such an order could have been passed against the appellant any
time after he had attained the age of fifty years, the respondents did
not take any such decision till the very fag end of his career. The
68 AIR 1964 SC 72
69 AIR 1967 SC 483
70 (1984) 2 SCC 8
71 (1986) 1 SCC 133
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impugned order of compulsory retirement was passed in this case
on 27-9-2019 whereas the appellant was to superannuate in
ordinary course in January 2020. There appears an apparent
contradiction in the approach of the respondents who had till as
late as in July 2019 continued to grade the appellant as
“Outstanding” and had assessed his integrity as “Beyond doubt”.
But in less than three months reckoned therefrom, the respondents
had turned turtle to arrive at the conclusion that he deserved to be
compulsorily retired. If the appellant was worthy of being
continued in service for little short of a decade after he had attained
the age of 50 years and of being granted an overall grade of 9 on
the scale of 1-10 on 31-7-2019 it has not been shown as to what
had transpired thereafter that made the respondents resort to FR
56(j) and invoke the public interest doctrine to compulsorily retire
him with just three months of service left for his retirement, in
routine. In such a case, this Court is inclined to pierce the
smokescreen and on doing so, we are of the firm view that the
order of compulsory retirement in the given facts and
circumstances of the case cannot be sustained. The said order is
punitive in nature and was passed to short-circuit the disciplinary
proceedings pending against the appellant and ensure his
immediate removal. The impugned order passed by the
respondents does not pass muster as it fails to satisfy the
underlying test of serving the interest of the public.
43. In view of the above discussion, it is deemed appropriate to
reverse the impugned judgment dated 31-5-2022 and quash and set
aside the Order dated 27-9-2019 passed by the respondents,
compulsorily retiring the appellant. Resultantly, the adverse
consequences if any, flowing from the said order of compulsory
retirement imposed on the appellant, are also set aside. The appeal
is allowed and disposed of on the aforesaid terms while leaving the
parties to bear their own costs.”
22.5 The Takeaway
From the above judgments, the following principles emerge, in the
matter of compulsory retirement, where it is not awarded as a
punishment:
(i) The scope of judicial review, in matters of compulsory
retirement, is fairly limited.
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(ii) Compulsory retirement involves no penal consequences.
(iii) At the same time, if unlimited discretion is permitted to
the administration in the matter of passing orders of compulsory
retirement, it would be the surest menace to public interest and
must fail for unreasonable, arbitrariness and disguised
dismissal.
(iv) The exercise of power to compulsory retire an officer
must be bona fide and to promote public interest.
(v) It is permissible to lift the veil in order to ascertain
whether an order of compulsory retirement is based on any
misconduct of the government servant and whether the order
has been made bona fide without any oblique and extraneous
purpose.
(vi) A bona fide order of compulsory retirement can be
challenged only on the ground that the requisite opinion has not
been informed, the decision is based on collateral factors or is
arbitrary.
(vii) The court cannot sit in appeal over an order of
compulsory retirement, but can interfere if it is satisfied that the
order is passed mala fide, or is based on no evidence, or is
arbitrary, in the sense that no reasonable person would form the
requisite opinion in the given material.
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(viii) The object of compulsory retirement, where it is not
awarded as a punishment, aims at weeding out dead wood to
maintain efficiency and initiative in the service, and dispensing
with the services of those whose integrity is doubtful so as to
preserve purity in the administration.
(ix) If the order of compulsory retirement casts a stigma on
the government servant or contains any statement casting
aspersion on his conduct or character, it would be treated as an
order of punishment, attracting Article 311(2) of the
Constitution of India. If, however, the order of compulsory
retirement refers only to an assessment of his work and does not
cast an aspersion on his conduct or character, the order of
compulsory retirement cannot be treated as an order of
punishment. The test would be the manner in which a
reasonable person would read or understand the order of
compulsory retirement.
(x) FR 56(j) does not require any opportunity to show cause
to be provided before an order of compulsory retirement is
passed.
(xi) Before passing an order of compulsory retirement, the
entire service record of the officer has to be taken into account.
(xii) The gradings in the ACRs of the officer are relevant. The
performance of the officer in later years, including the gradings
granted in later years, would be of greater relevance than those
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in earlier years. Where the ACRs continuously record the
integrity of the officer as being “beyond doubt”, or grade him
“outstanding” or “very good”, it is an important factor in favour
of the officer, and would, in a given case, vitiate the order of
compulsory retirement, unless it is shown that, between the last
such entry and the passing of the order of compulsory
retirement, there was sudden and unexplained deterioration in
the performance of the officer.
(xiii) Uncommunicated adverse entries in the ACRs of the
officer can also be taken into account before passing an order of
compulsory retirement.
(xiv) Grant of promotion to an officer despite adverse entries
in his confidential record is a factor operating in favour of the
officer. Promotion to a higher post notwithstanding adverse
remarks result in the adverse remarks losing their sting.
(xv) The fact that the officer was allowed to cross the
efficiency bar, or was granted promotion after the events which
formed the basis of the order of compulsory retirement, is also a
relevant consideration.
(xvi) The subjective satisfaction of the authority passing an
order of compulsory retirement must be based on valid material.
(xvii) Compulsory retirement is not required to be by a
speaking order.
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(xviii) The principle of audi alteram partem has no application
in the case of compulsory retirement.
22.6 How these principles apply
22.6.1 The manner in which these principles are to be applied would
become apparent if one briefly glances at the facts in the cases cited
supra.
22.6.2 In Swami Saran Saksena, the Supreme Court observed that,
where the employee was found worthy of being permitted to cross the
second efficiency bar, a few months before passing the order of
compulsory retirement, for which purpose he was considered to have
worked with distinct ability and his integrity was found to be beyond
question, the order of compulsory retirement was vitiated. The
Supreme Court observed that it could not be believed that, within a
few months of being permitted to cross the second efficiency bar, the
employee had become so unfit so as to deserve compulsory
retirement. There was no evidence of sudden deterioration in the
quality of employee’s work.
22.6.3 In Baldev Raj Chadha, it was held that the officer who was in
continuous service for 14 years, who crossed the efficiency bar and
reached the maximum salary in the scale, with no adverse entries at
least five years immediately prior to the order of compulsory
retirement, could not have been compulsorily retired on the ground
that many years earlier, his performance was poor.
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22.6.4 In Ram Ekbal Sharma, the Supreme Court observed that,
where the order of compulsory retirement alleged that the officer had
committed grave financial irregularities, leading to financial loss to
the State, the order was one of punishment and Article 311 of the
Constitution would apply.
22.6.5 In State of Gujarat v Suryakant Chunnilal Shah, there were
no adverse remarks in the character roll in the ACRs of the officer, his
integrity was never doubted at any time, and his ACRs subsequent to
his promotion to the next grade were not available. The Supreme
Court held that, in such circumstances, the review committee could
not be said to have been in possession of any such material as would
indicate that the officer was a man of doubtful integrity or fit to be
compulsorily retired from service.
22.6.6 In Pramod Kumar Bajaj, the ACRs of the officer reflected
that, over the past several years, his integrity was regularly assessed as
“beyond doubt”. He was also graded as an “outstanding” officer for
the past one decade, till the period just prior to the passing of the order
of compulsory retirement. There were no adverse entries in his ACRs
insofar as his work performance was concerned. Nor was any
aspersion cast on his conduct or character during the said period. His
efficiency and integrity remained unimpeachable through his career.
In such circumstances, the mere fact that there may have been
complaints pending against him in the vigilance directorate was held
to be insufficient as a ground to compulsorily retire him from service.
The Supreme Court, in that case, also went into the specifics of the
complaints.
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22.6.7 In CISF v Om Prakash, the Supreme Court held that, though
the officer had been promoted, he had, prior thereto, been awarded a
number of punishments, which included receipt of illegal gratification.
It was noted that there were also allegations of absence from duty and
overstaying of leave and that four days’ fine had also been imposed on
him as punishment for sleeping on duty. His ACRs were also found to
be varying, with overall gradings of “average”, “below average”,
“satisfactory” and “very good”. For one year of the five years
immediately preceding his compulsory retirement, he had been graded
“average”. In such circumstances, the Supreme Court held that the
High Court was in error in setting aside the order of compulsory
retirement.
22.6.8 In Post and Telegraphs Board v C S N Murthy, it was held
that, if the officer was earlier a very good officer, but his performance
was found to be slackening in the last two years of the period under
review, the decision to compulsorily retire him could not be held to be
illegal.
22.6.9 In Pyare Mohan Lal v State of Jharkhand, while the
immediate past record of the employee, prior to the passing of the
order of compulsory retirement, showed that his performance was
exemplary, the authorities were not justified in compulsorily retiring
him from service on the basis of some very old adverse entries. Such
exercise of power was held to be arbitrary. Even so, it was observed
that if the old record pertained to the integrity of the officer, the order
of compulsory retirement might have been justified.
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22.6.10 In Rajesh Gupta, the Supreme Court noted that the officer had
a spotless service record throughout 24 years of his service and that
(i) in his ACR for the period 1997-1998, he had been
assessed as a “very good officer” with “excellent integrity”,
(ii) for the year 1998-1999, he was assessed as a “good
officer” with “excellent” integrity,
(iii) for the year 1999-2000, his integrity was again graded as
“excellent” and he was graded as a “very good officer”,
(iv) for the year 2000-2001, he was graded as a “good
officer” with “good integrity”,
(v) for the periods 27 October 2001 to 29 July 2002 and 23
October 2002 to 23 December 2002, his work and conduct was
found to be good and it was recorded that no complaint was
brought to the notice of the Reporting Officer regarding
integrity, and
(vi) for the year 2003-2004, he was assessed as an
“outstanding officer” and that nothing adverse regarding
integrity had come to notice.
Despite this, he was compulsorily retired from service. The Supreme
Court went into the grounds on which he was compulsorily retired and
found them to be insubstantial.
23 Applying the law to the facts before us
23.1 Re. Ajay Kumar Sharma
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23.1.1 In the case of Ajay Kumar Sharma, the ACRs of the petitioner
from the year 2000-2001 until the years 2018-2019 have uniformly
been either ‘very good’ or outstanding’ In the years 2002-2003, 2003-
2004, 2004-2005 and 2008-2009, he was graded as ‘outstanding’ and
deserving of promotion. In the year 2009-2010, it was noted that the
petitioner was always ready to assume responsibility and was devoted
to work, that he was technically sound and displayed positive
approach towards timely completion of work, and he was given an
excellent overall grading. In the year 2010-2011, it was noted that he
was a very intelligent, laborious and devoted officer and was always
ready to take on any work assigned to him on priority and complete it
well within time. For the year 2011-2012, it was noted that he was a
hard worker, took pains to learn new work and was ready to complete
work assigned to him. For the years 2016-2017, it was noted that he
was intelligent and hard working. For the years 2017-2018, it was
observed that he was wholly capable to take prompt decisions to
achieve his target.
23.1.2 At a bare glance, the decision to compulsorily retire such an
officer is ex facie incongruous.
23.1.3 The order of compulsory retirement and the order dismissing
the representation filed by the petitioner against his compulsorily
retirement are both non-speaking. The only reasoning is to be found in
the entry by the Review Committee in its minutes dated 13 September
2019 against S. No.12. That entry only refers to two penalties having
been awarded to him in the past. Of these, one penalty was by order
dated 11 June 2019 and the other was by order dated 8 June 2007,
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more than 12 years prior to the passing of the order of compulsory
retirement. In so far as the penalty order dated 11 June 2019 was
concerned, though the Inquiry Officer with whose decision the DA
concurred, specifically found that there was no substance in the
allegation. The Review Committee has merely held that in view of the
penalties imposed on the petitioner, his integrity was doubtful. This is
in stark contradiction to the entries contained in the petitioner’s
ACRs, specifically with respect to his integrity. Besides, the penalty
awarded in 2007 was 12 years prior to the passing of the order of
compulsory retirement.
23.2 Re. S.K. Chauhan
23.2.1 In the case of S K Chauhan, the material is even more scanty
than was available in the case of Ajay Kumar Sharma. The integrity of
the petitioner was continuously certified as beyond doubt in his ACRs
from the years 2014-2015 to 2018-2019. The decision to compulsorily
retire him from service was sought to be justified on the basis of two
penalties awarded to him in 2007-2008, 11 and 12 years prior to the
order of compulsory retirement. The order of penalty dated 18
November 2008 was only minor and did not involve any aspect of
integrity. In so far as the order of penalty dated 10 December 2007
was concerned, though it was facially a major penalty, that was only
because the punishment awarded was with cumulative effect, it would
have been a minor penalty. Moreover, though there was a specific
allegation of connivance between the petitioner and builders/owners
in the charge-sheet, the IO found that the allegations were
unsubstantiated, and the DA agreed with him.
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23.2.2 Besides, as already noted, there is not a single complaint
against the petitioner for 12 years after the imposition of the
punishment on 10 December 2007. During these years, his integrity
has uniformly been certified as beyond doubt.
23.2.3 Moreover, the proforma, which was placed before the Review
Committee, as annexed to the writ petition, reveals that the only
ground on which the Review Committee proceeded were the afore-
noted two punishments awarded to the petitioner. The entries relating
to the number of promotions obtained by him, whether he got timely
promotions and overall conduct were all blank. The ACR entries as
entered in the said proforma reflect that the petitioner was always
graded as either “very good” or “outstanding”.
23.2.4 As a result, in this case too, the decision to compulsorily retire
the petitioner cannot be said to have been justified on the facts and in
the light of the law on the subject as set out hereinbelow.
23.3 Clearly, therefore, the respondents did not properly appreciate
the entire service record of the petitioners, or apply their mind
properly while deciding to compulsorily retire the petitioners. The
decisions are not supported by the material on record. The Tribunal,
for its part, with greatest respect, has proceeded cursorily, without a
holistic appreciation of the facts.
23.4 Though, facially, an order of compulsorily retirement may not
be “stigmatic” or punitive, it prematurely brings the service career of
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the officer to an ignominiously grinding halt. It has far reaching
repercussions on the officer, personally, professionally and socially.
When it is made subject to judicial review, the Court is duty bound to
holistically examine all the facts of the case, the reasoning which
prevailed with the authorities in compulsorily retiring the officer, and
whether the reasoning can sustain on the basis of the facts, applying
the law that has developed in that regard.
23.5 Nothing less would suffice.
Conclusion
24. We have already found that the impugned judgments/orders
passed by the Tribunal are unreasoned and proceed on extraneous and,
in certain cases, even on erroneous factual considerations. We have
also ourselves objectively examined the decisions to compulsory retire
the petitioners in the backdrop of the law that has developed in that
regard. We do not find the decisions to be sustainable on facts or in
law.
25. In that view of the matter, the impugned orders passed by the
Tribunal are quashed and set aside. The orders of compulsory
retirement of the petitioners are also quashed and set aside. The
petitioners would be entitled to consequential reliefs in accordance
with law. In case they have yet to cross the age of superannuation,
they will be entitled to reinstatement with effect from the date of their
compulsory retirement, with the benefit of notional fixation of pay
and other consequential benefits, but without any arrears. In case they
Signature Not Verified
WP(C) 1823/2021 & WP(C) 6590/2021
Digitally Signed By:AJIT Page 90 of 91
KUMAR
Signing Date:28.05.2025
14:21:55
have crossed the age of superannuation, they would be entitled
similarly to notional fixation of pay and computation of their retiral
benefits on that basis.
26. Let the benefits, in that regard, be disbursed to the petitioners
within four weeks of uploading of this judgment on the website of this
Court.
27. The writ petitions are accordingly allowed with no orders as to
costs.
C. HARI SHANKAR, J.
AMIT SHARMA, J.
MAY 28, 2025/yg/dsn
Click here to check corrigendum, if any
Signature Not Verified
WP(C) 1823/2021 & WP(C) 6590/2021
Digitally Signed By:AJIT Page 91 of 91
KUMAR
Signing Date:28.05.2025
14:21:55
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