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PETITIONER:

I.K. MISHRA

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 11/07/1997

BENCH:

SUJATA V. MANOHAR, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

V.N. KHARE, J.

The appellant before us, started his service career as

a Sub-Auditor in the erstwhile Holkar Estate, Indore with

effect from 5th February, 1943. Subsequently on

reorganisation of states in the year 1956 the appellant

continued to serve in the office of Accountant General,

Madhya Pradesh, Gwalior. The appellant while working as

Auditor was accorded selection grade. However, subsequently

the appellant was compulsorily retired from service by

notice dated 23rd of August, 1974 issued under Rule 48(b) of

C.C.S. Pension Rules, 1972 hereinafter referred to as the

Rules.

The appellant challenged the impugned notice

compulsorily retiring him from service by filing a Civil

Suit in the Court of Sub-Judge, Gwalior for a declaration

that the order compulsorily retiring him from service is

illegal and inoperative, being arbitrary and mala fide. The

Trial Court decreed the suit and the aforesaid decree was

affirmed by the first Lower Appellate Court. The High Court

in the Second Appeal filed at the instance of the

respondents set aside the decree and Judgments of the Trial

Court and the First Appellate Court holding that the order

compulsorily retiring the appellant from service did not

suffer from infirmity either on account of arbitrariness or

mala fid es. That is how the plaintiff appellant has come up

in appeal before us.

Counsel for the appellant reiterated the argument

advanced before the Court below characterising the order

compulsorily retiring the appellant from service as

arbitrary and mala fide. It was urged that the service

record of the appellant being unblemished, the impugned

order compulsorily retiring the appellant deserves to be

held as arbitrary. The law in regard to the compulsory

retirement of the government servants in terms of the

service rule is almost settled by now by number of decisions

of this Court. Repeatedly it has been held that the power to

retire compulsorily a government

servant in terms of the service rules is absolute provided

the concerned authority forms an opinion bona fide that it

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is necessary to pass order of compulsory retirement in the

public interest. This Court in the case of Baikuntha Das and

another v. Chief District Medical Officer, Baripada and

another [1992 (2) S.C.C. 299] after considering the number

of decisions of the apex Court referred the following

principles for testing the validity of order of compulsory

retirement.

"34. The following principles

emerge from the above discussion:

(i) In order of compulsory

retirement is not a punishment. It

implies no stigma nor any

suggestion of misbehaviour.

(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

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discussed in paras 30 to 32 above."

Applying principles No.3 and 4 to the present case, it

is worthwhile to refer to the entries pertaining to

appellant in his Annual Confidential Report. In the annual

confidential report for the year 1960-61 the appellant has

been described as an average worker and his further

promotion was deferred. In the year 1961-62 the appellant

was again graded as poor. About trustworthiness it was

remarked that his work requires supervision as his accuracy

is limited. Against column " business habits " it was

remarked that appellant's method of working is not

systematic. During the period 1.4.64 to 26th of December,

1964 against the column "fitness and further advancement of

appellant ", it was remarked - "question does not arise".

During the period 1965-66 and 1966-67 as well the appellant

was described as an average worker. By letter dated 8th of

September, 1972 the Senior Deputy Accountant General,

Administration observed that the appellant has not been

reported good and was required to show improvement in his

work before he may be allowed to cross the efficiency bar.

for the period beginning from 13.6.1971 to 30.11.1971 the

Reviewing Officer observed in the report that the appellant

is not fit for further advancement and is an average worker.

Besides that by an order dated 4th February, 1970

passed by the Accountant General, the appellant was

subjected to the minor penalty of withholding next increment

for the period of two years with cumulative effect of

postponing future increments which was reduced by the

Appellate Authority to withholding of increments "for two

years without cumulative effect". By letter dated 20th of

November, 1973 passed by the Accountant General, the

appellant was further subjected to the penalty of reduction

to the lower stage of Rs.550/- for a period of two years and

further the appellant was denied benefit of increment during

the period of subsistence of the penalty.

The adverse remarks in the annual confidential report

and the minor punishment inflicted upon the appellant as

referred herein before clearly demolishes the contention

that appellant's service record was unblemished. It is not

disputed that the entire service record including (good and

bad) entries of the appellant were placed before the Review

Committee and the Review Committee after considering the

aforesaid reports mainly confidential report/character roll

both favourable and adverse recommended the appointing

authority for compulsory retirement of the appellant from

service. The adverse materials placed before the Review

Committee and the appointing authority show that the order

compulsorily retiring the appellant from service was based

on material on record and at no stretch of imagination it

can be branded as arbitrary.

It was then contended that the appellant having passed

the S.A.S Part II Civil Examination in the year 1972-73

after complying with the eligibility criteria laid down in

the Regulations 199 and 207, the adverse entries in the

character roll of the appellant lost their sting and for

that reason there was no material on record on basis of

which the appointing authority could form an opinion to

compulsorily retire the appellant from service. No doubt the

appellant was sent by the respondents to appear in S.A.S.

examination in the year 1972-73 after having been found that

the appellant complied with the conditions for appearing in

the said examination and further the appellant passed the

S.A.S. Part II examination but merely the facts that the

appellant was sent to appear in the examination and was

declared successful in the said examination are not the end

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of the matter. In fact passing of the S.A.S. examination

entitles an auditor to be considered for promotion to the

higher post by the Departmental Promotion Committee. In the

present case after the appellant was declared successful in

the S.A.S. examination, the Departmental Promotion Committee

after considering the service record of the appellant did

not recommend his case for further promotion. Applying the

principle No.4 as noted in the case of Baikuntha Nath Das

(Supra) the appellant having not been promoted to the higher

post the adverse remarks in his character roll remained

intact. Since the appellant was not promoted to the higher

post by the Departmental Promotion Committee it is not

correct to contend that the adverse materials in the annual

confidential report of the appellant lost their sting and

those materials could not form the basis of order

compulsorily retiring the appellant from service.

Lastly it was urged that the order compulsorily

retiring the appellant was a mala fide order as the same was

passed at the instance of Shri Manazure Muastafa Siddiqui,

Accountant General, M.P., who bore grudge against the

appellant. This argument is being noted only to be rejected.

It may be noticed that the record before us does not show

that Shri Manazure Muastafa Siddiqui was party to the suit.

In fact he was not impleaded by name in the suit. Further,

the allegations against Shri Siddiqui were totally vague. No

inference of mala fide could be drawn from such allegations.

In the absence of full facts and particulars in the plaint

in respect of allegation of malafides the order compulsorily

retiring the appellant cannot be held to be mala fide order.

For the aforesaid reasons the instant appeal has no

merit and is accordingly dismissed. There shall be no order

as to costs.