IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No. 7910 of 2024

======================================================

Subrat Kumar Jena Son of Sri Hara Mohan Jena, Resident of Flat No. 405, D

Block, Sai Enclave Apartment, Vijay Singh Yadav Path, P.O.- Khagual, P.S.-

Khagaul, District- Patna, Bihar-801105, permanent resident of- Village-

Balijhati, P.O.- Ramakrishnapur, P.S.- Bhuban, District- Dhenknal, Odisha-

759017, Lastly posted as Deputy Chief Electrical Engineer (Loco), East

Central Railway, Hajipur, Bihar.

... ... Petitioner/s

Versus

1.The Union of India through the Chairman, Railway Board, Ministry of

Railway, Government of India, Rail Bhawan, New Delhi, Pin- 110001.

2.The Secretary, Railway Board, Ministry of Railway, Government of India,

Rail Bhawan, New Delhi, Pin-110001.

3.The Director (Establishment), Railway Board, Ministry of Railway,

Government of India, Rail Bhawan, New Delhi, Pin- 110001.

4.The Member, Traction, Railway Board, Ministry of Railway, Government of

India, Rail Bhawan, New Delhi, Pin-110001.

5.The Member (Staff), Railway Board, Ministry of Railway, Government of

India, Rail Bhawan, New Delhi, Pin- 110001.

... ... Respondent/s

======================================================

Appearance :

For the Petitioner/s : Mr. Shekhar Singh, Sr. Adv.

Mr. Prasoon Shekhar, Adv.

Mr. Avinash Kr. Singh, Adv.

For the Respondent/s : Dr. K.N. Singh, Sr. Adv. (ASG)

Mr. Subhodh Kr. Jha, Sr. CGC

Mr. Ram Tujabh Singh, CGC

Mr. Shivaditya, Adv.

Mr. Abhinav, Adv

======================================================

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

and

HONOURABLE MR. JUSTICE PRAVEEN KUMAR

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)

Date: 28-04-2026

The present writ petition has been filed against the

judgment dated 22.02.2024, passed by the learned Central

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

2/33

Administrative Tribunal, Patna Bench, Patna (hereinafter

referred to as the “Ld. CAT”) in OA/051/01130/2019, whereby

and whereunder the original application filed by the petitioner

has been disposed off with liberty to the petitioner herein to file

representation against the order of his compulsory retirement

within three weeks and the Representation Committee has been

directed to examine and pass a reasoned and a speaking order on

the representation of the petitioner within three months.

2.At the outset, it may be relevant to mention here that a

Coordinate Bench of this Court, vide judgment dated 20.07.2024

had allowed the present writ petition and quashed the impugned

orders dated 06.12.2019 and 03.12.2019, challenged in the

aforesaid original application as also had directed to reinstate the

petitioner forthwith while extending all service and monetary

benefits for the entire intervening period. The respondents had

challenged the said judgment dated 20.07.2024, passed in the

present writ petition as also the order dated 13.08.2025 passed in

Civil Review No. 320 of 2024 before the Hon’ble Apex Court,

by filing SLP (C) Nos. 31677-78 of 2025 (converted into Civil

Appeal Nos. 13326-13327 of 2025) and the Hon’ble Apex

Court, by an order dated 03.11.2025 has quashed and set aside

the impugned judgment dated 20.7.2024, passed in CWJC No.

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

3/33

7910/2024 and the order dt. 13.8.2025, passed in Civil Review

No. 320/2024 & has remanded the matter back to this Court for

consideration afresh. This is how the present case is before this

Court. It may be relevant to reproduce herein below the relevant

portion of the order dated 03.11.2025, passed by the Hon’ble

Apex Court in Civil Appeal Nos. 13326-13327 of 2025:-

“3. Having heard learned counsel for the parties, we are

of the considered view that the impugned judgment dated

20.07.2024 in CWJC No.7910/2024 and order dated 13-

08-2025 in CR No.320/2024 need to be quashed and set

aside for the reason that no reason stands assigned

therein, while allowing the writ petition preferred by the

instant respondent. As such, we quash and set aside the

impugned judgment dated 20-07-2024 in CWJC

No.7910/2024 titled “Subrat Kumar Jena vs. Union of

India & Ors.” and order dated 13-08-2025 in CR

No.320/2024 in CWJC No.7910/2024 titled “Subrat

Kumar Jena vs. State of Bihar & Anr.” passed by the

High Court of Judicature at Patna and remand the matter

for consideration afresh before the High Court.”

3.The brief facts of the case, according to the petitioner are

that the petitioner was initially appointed in Railway service on

a Group ‘C’ post on 13.6.1989. Subsequently, the petitioner was

inducted in Indian Railway Service of Electrical Engineers

(hereinafter referred to as the “IRSEE”), Group ‘A’ on

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

4/33

04.03.2004, upon the recommendation made by the Union

Public Service Commission. The petitioner was promoted to the

post of Executive Electrical Engineer on 11.3.2009, to the post

of Senior Divisional Electrical Engineer on 27.12.2013 and

finally to the post of Dy. Chief Electrical Engineer on 10.5.2018

(notionally with effect from 01.01.2016), whereafter the

petitioner was granted selection grade with effect from

01.01.2016, vide order dt. 10.05.2018.

4.The Ld. Senior Counsel for the petitioner has next

referred to the sheets pertaining to periodical review of service

under Rule 1802(a)/1803(a)/1804(a) of Indian Railway

Establishment Code (hereinafter referred to as the “IREC”), Vol-

II 1987 Edition and Railway Board’s letter No. E(P&A)I-

2015/RT-38 dt. 10/12.11.2015 (RBE No. 143/2015), whereby

the services of the petitioner was reviewed by the Zonal

Screening Committee for the period till the year 2018-19 (up to

31.3.2020 i.e. first quarter of 2020) on account of the petitioner

having attained the age of 50 years and he was found fit to be

continued. Accordingly, the file was processed qua the petitioner

and recommendation was made for his continuation in service,

which was approved by the General Manager, vide his note

dated 1.10.2019. Then again, such periodic review under Rule

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

5/33

1802(a)/1803(a)/1804(a) of IREC, Vol-II, 1987 Edition was

made in the month of September, 2019 and out of 168 officers,

whose services were reviewed, 150 officers were found fit for

continuation in service, however 18 officers were shortlisted for

review by the Review Committee and the petitioner was one

amongst them. Thereafter, the case of the petitioner and others

was placed before the Review Committee, which vide notes

dated 26.9.2019 had noted that performance wise all the said 18

officers including the petitioner have been graded outstanding/

Very Good/ Good and their integrity as reflected in the integrity

column in their APARs also appears to be satisfactory, however

since their vigilance history shows multiple substantiated cases,

which casts a shadow on their integrity, it was observed that the

Review Committee may like to associate PED / Vigilance while

reviewing the services of the said officers. Thereafter, the file

was put up to the CRB for convening Review Meeting,

whereupon as regards the vigilance cases, a note was appended

against the name of the petitioner to the following effect:-

“irregularities in acceptance of open tender, counselling issued

on 17.1.2018”.

5.The Review Committee had then met on 14.11.2019 to

review the services of IRSEE Officers including the petitioner

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

6/33

and inputs of Principal Executive Director/ Vigilance were taken

into account during the deliberations, whereafter the findings of

the said Review Committee was put before the Railway Board,

comprising of its Chairman and two Members, who undertook

the review by considering the report of internal committee and

the entire service records of the officers including performance

of the Officer as reflected in the APARs for the entire career,

vigilance history of the officers, integrity as reflected in the

APARs, the assessment of PED / vigilance and integrity /

general reputation as ascertained from the officers with whom

he had worked during his entire service period and it was

decided that the petitioner is fit to be retired prematurely

/compulsorily in public interest in keeping with the

Government’s policy of improving efficiency by dispensing with

public servants, who are no longer found useful to the

administration. The said decision dated 19.11.2019 can be found

at running page no. 678 of the brief.

6.Thereafter, an order dated 3.12.2019 was issued under the

signature of Under Secretary, Estt.(s) Railway Board, Ministry

of Railway, Government of India, wherein it has been stated that

the President is of the opinion that it is in the public interest to

do so, hence in exercise of power conferred by Rule 1802(a) of

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

7/33

the Indian Railway Establishment Code Vol. II, the president

hereby retires Sri J.K. Jena, IRSEE, East Central Railway from

service from the date on which this order is served on him, he

having already attained the age of 50 years on 29.4.2016 and the

President also directs that the petitioner shall be paid a sum

equivalent to the amount of his pay + allowances for a period of

three months calculated at the same rate at which he was

drawing them immediately before his retirement in lieu of the

notice and if he so desires he may represent in writing within

three weeks from the date the order is served on him. A notice

dated 06.12.2019 was then issued under the signature of Deputy

CPO / Gaz., Eastern Central Railway / HJP, wherein it has been

mentioned that in exercise of powers conferred by Rule 1802(a)

of the Indian Railway Establishment Code Vol. II, the President

has decided to relieve Sri S.K. Jena, IRSEE, currently Deputy

CEE/LOCO/ECR/HQ/HJP from service in public interest from

the date the order to this effect is served on him. It was further

mentioned in the said notice dated 6.12.2019 that the said order

was attempted to be served upon the petitioner in his office on

6.12.2019, however the officer was not found in his office. The

petitioner appears to have received the said order dated

3.12.2019 on 10.12.2019 under protest with a noting made by

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

8/33

him to the effect that the said order shall be challenged under

due process of law at appropriate forum.

7.The petitioner had then filed an original application

bearing OA/051/01130/2019 before the Ld. CAT, challenging

the order of compulsory retirement dated 3.12.2019 as also the

notice dated 6.12.2019 on the ground that the analysis of the

petitioner’s service record by the Review Committee has not

been done objectively, no APARs gradings have been examined,

no adverse materials have been identified, no reasons have been

recorded to the effect that the petitioner is not fit to be continued

in service, no bonafide opinion has been recorded by the

appointing authority under Rule 1802(a), RBE No. 130 / 2019

has not been complied with, the proceedings of the Review

Committee contains no individualised reasoning for selecting

three officers to be compulsorily retired, there is non-application

of mind and lastly, the conclusion that the said three officers

including the petitioner should be compulsorily retired is not

supported by any comparative or distinct evaluation.

8.The respondents had filed a written statement before the

Ld. CAT in the aforesaid original application filed by the

petitioner, wherein a preliminary objection was raised with

regard to the maintainability of the original application in lieu of

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

9/33

RBE No. 130 /2019, which postulates that an officer who has

been served with a notice/order of permanent retirement, may

submit a representation within three weeks from the date of

service of such notice/order and then the final order is required

to be passed by the authority superior to the authority which

issued the order of premature retirement, only after obtaining

approval of the Ministry of Railways. In case the order of

premature retirement has been issued by the President, the final

order on the representation shall be passed by the Minister-in-

charge of the Ministry/ Department concerned. Hence, it was

contended by the Respondents before the Ld. CAT that since

there is a specific remedy of filing representation against notice /

order relating to premature retirement, the petitioner should first

exhaust this remedy. Reference was made to Rule 1802(a)/

1803(a)/ 1804(a) of Indian Railway Establishment Code Vol. II,

1987 Edition and OMs dated 21.3.2014 and 11.9.2015 as also to

RBE No. 143/2015 dated 10/12.11.2015. It was also stated that

compulsory retirement does not amount to dismissal or removal

from service within the meaning of Article 311 of the

Constitution of India and it is neither punishment nor is visited

with loss of retiral benefits nor it casts stigma and the officer

would be entitled to pension that he has actually earned, as such

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

10/33

there is no diminution of the accrued benefits. It was also

contended by the respondents that if the appropriate authority

finds in a bonafide manner that an officer is required to be

compulsory retired in public interest, the correctness thereof

cannot be challenged before the Courts. Reference was made to

a judgment rendered by the Hon’ble Apex in the case of Union

of India vs. J.N. Sinha, reported in 1971 (1) SCR 791, wherein

it has been held that the order retiring a Government servant

compulsorily can only be challenged on the ground that either

the order is arbitrary or it is not in public interest, however no

other ground is available. Reference was also made to a

judgment rendered by the Hon’ble Apex Court in the case of

Baikuntha Nath Das & Anr. vs. Chief District Medical Officer,

Baripada & Anr., reported in (1992) 2 SCC 299. It was also

contended that there was consistent decline in the performance

of the petitioner and remark was made against him in a vigilance

case regarding irregularity in acceptance of open tender for

which he was counselled on 17.1.2018, hence there is nothing

wrong in the order by which the petitioner has been compulsory

retired in public interest.

9.The Ld. CAT, after hearing the parties, has by the

impugned judgment dated 22.2.2024, passed in OA/051/01130/

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

11/33

2019, disposed off the original application filed by the petitioner

herein with liberty to him to file a representation against the

order of his compulsory retirement within three weeks and the

Representation Committee has been directed to examine and

pass a reasoned and a speaking order on the representation of the

petitioner within three months.

10.The Ld. Senior Counsel for the petitioner has submitted

that the Ld. CAT has committed a grave error by holding that the

petitioner has filed the original application without exhausting

the remedy of filing representation, available in terms of RBE

No. 130/2019 and accordingly has erroneously disposed off the

original application filed by the petitioner granting him liberty to

file representation against the order of his compulsory

retirement within three weeks, inasmuch as RBE No. 130/2019,

dated 08.08.2019, containing the salient points of the various

instructions on the subject relating to retiring a Railway servant

in public interest before the normal date of his retirement,

postulates that a Railway Employee, who has been served with a

notice/order of premature retirement, may submit a

representation within three weeks from the date of service of

such notice/order. Thus, it is submitted that the word used in

RBE No. 130/2019 is “may”, making the said remedy of filing

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

12/33

representation purely directory and not mandatory. It is further

submitted that the IREC Code Vol.-II, especially Rule 1802(a)

thereof, pertaining to the provisions regarding compulsory

retirement does not contain any statutory requirement of filing a

representation. It is contended that it is a well-settled law that

Executive instructions (RBE No. 130 /2019) cannot override a

statutory rule i.e. Rule 1802(a), hence there is no statutory

prescription provided for under the IREC Code Vol. II (Chapter-

XVIII) for filing a representation, thus admittedly no alternative

statutory remedy is available to the petitioner under the Rules,

thus the Ld. CAT has committed a grave error by relegating the

petitioner to the remedy of filing a representation before the

Respondents, against the order/notice of compulsory retirement.

11.At this juncture, reference has been made to Section 20 of

the Administrative Tribunals Act, 1985 to submit that the same

also postulates that a Tribunal shall not ordinarily admit an

application unless it is satisfied that the applicant had availed of

all the remedies available to him under the relevant service Rule

with regard to redressal of grievances. Thus, it is submitted that

firstly, the relevant service Rules do not provide for any

alternative statutory remedy by way of filing representation

against the notice/order of compulsory retirement and secondly,

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

13/33

the Ld. CAT retains discretion to entertain an original

application in such cases where other remedies have not been

exhausted. In the instant case, the Ld. CAT had exercised its

discretion when it had issued notice to the respondents in the

aforesaid original application on 10.12.2019 and had heard the

matter at length for a period spanning over four years, hence the

Ld. CAT ought not to have relegated the petitioner to the remedy

of filing a representation, thus it is submitted that on this score

alone, the impugned judgment dated 22.2.2024, passed by the

Ld. CAT is fit to be set aside. It is also submitted that relegating

the petitioner to the remedy of filing a representation at this

stage would be an empty formality, devoid of remedial value, for

the following reasons:-

“a. the authority deciding the representation is the very

same authority that has passed the order of compulsory

retirement;

b. the respondents have already filed detailed counter

affidavits, expanding and altering grounds at different

stages, including assertions in paras 23-25 of the Written

Statement branding the Petitioner as "deadwood," thereby

creating a risk of post facto rationalization.

c. RBE No. 130/2019 (paras 6(a) & 6(b)) indicates that a

representation is meaningful only if the employee has

access to the material, data and reasoning that weighed

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

14/33

with the Review Committee and the Competent Authority.

d. Para 6(b) contemplates representation based on "new

facts or aspects not hitherto taken into consideration."

Premature retirement orders, however, are communicated

in a standard, innocuous form that discloses no reasons.

The decision's foundation lies entirely in the internal

notings & committee deliberations are never supplied to the

employee.

e. Without access to these materials, it is impossible for

the employee to demonstrate "new facts not hitherto

considered." The representation becomes structurally

incapable of addressing undisclosed reasons. One cannot

rebut grounds that are not communicated. Such a remedy

is illusory and cannot be treated as an efficacious or

alternative remedy so as to bar writ jurisdiction.

f. Para 6(h) of RBE 130/2019 expressly states that when

a court grants a stay, the representation "is not to be

considered by the administration nor set up before the

Committee until disposal of the court case." This shows

that the rule-makers themselves treated representation as

non-essential within the framework of FR 56(j)/Rule

1802(a) and once judicial proceedings commence, the

representation mechanism becomes inoperative.”

12.On merits, the Ld. Senior Counsel for the petitioner has

submitted that an order of compulsory retirement under Rule

1802(a) must withstand scrutiny on the touchstone of public

interest, supported by a comprehensive and objective evaluation

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

15/33

of the entire service record. The Review Committee has listed

four criteria’s, i.e. performance as reflected in the APARs of the

entire career, vigilance history, integrity, and general reputation,

however no analysis correlating these criteria to the Petitioner

was undertaken. No APAR gradings were examined, no adverse

material was identified and no reasons were recorded. The

Committees merely reproduced headings such as

"Performance", "Vigilance History", and "Integrity", without

demonstrating how those parameters were applied in the

Petitioner's case, thereby failing to satisfy the requirement of a

reasoned and an individualized assessment.

13.The Ld. Sr. Counsel for the petitioner while assailing the

order of compulsory retirement dated 3.12.2019 submits that the

same is vitiated on the following grounds:-

“1. Absence of a bona fide, recorded opinion under Rule

1802(a) - The Appointing Authority was required to form

and record a genuine opinion that compulsory retirement

was in public interest. The review file, however, contains

only cursory endorsements without any recorded bonafide

opinion. This omission constitutes a jurisdictional defect.

2. Non-compliance with the prescribed review procedure:

a. The Zonal Screening Committee's positive

recommendation dated 01.10.2019 finding the

Petitioner fit to continue was discarded without any

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

16/33

fresh adverse material. A "subsequent review" was

initiated barely two months later contrary to RBE

instructions, which permit such review only upon

emergence of exceptional circumstances.

b. Assertions that the Petitioner had "multiple

substantiated vigilance cases" are contradicted by the

vigilance history card, which contains no such

substantiated case. No particulars were supplied in the

original review file and later reliance was made on

documents not forming part of the file.

c. The Review Committee recommended retirement of

three officers collectively without individualised

reasoning or evaluation of complete service records,

contrary to RB instruction dated 15.11.1979 and RBE

130/2019.

3. Criteria for review of Services has been considered in

RBE No. 130/2019. Clause 4(c) provides that no

employee should ordinarily be retired where employee

has been promoted to a higher post during 5-year period

and his/her service in the highest post has been found

satisfactory. It is an admitted case that for the year 2016-

17 the Petitioner has been graded "Good", for the year

2017-18 the Petitioner has been graded "Outstanding", for

the year 2018-19 the Petitioner has been graded

"Outstanding" and for the year 2020 the Petitioner has

been graded "Outstanding".

4. The authorities have isolated a single "Average" APAR

(2015-16) while ignoring subsequent improved gradings

and the Petitioner's promotion to Selection Grade w.e.f.

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

17/33

01.01.2016 contrary to Para-5(j) and Para-4(c)(1) of RBE

No. 130/2019.

5. A lone average entry cannot sustain compulsory

retirement where the overall record after promotion is

satisfactory. The point system for the last five years places

the Petitioner above the retention threshold.

6. The Petitioner was not paid full three months' pay and

allowances (shortfall of 9 days), further vitiating the

impugned order.

7. The Committee reviewed 168 officers, shortlisted 18,

and compulsorily retired 3, including the Petitioner. Yet,

the proceedings contain no individualized reasoning for

selecting these 3 officers. Thus, the decision is arbitrary,

mechanical and without any application of mind.

8. The conclusion that three officers should be

compulsorily retired is unsupported by any comparative

or distinct evaluation, rendering the decision arbitrary.

9. The Order dated 13.08.2025 reinforces that the

Petitioner's service record was never analysed at all,

thereby vitiating the Committee's report and the

consequent retirement order.”

14.The Ld. Senior Counsel for the petitioner has relied on a

judgment rendered by the Hon’ble Apex Court in the case of

Baikuntha Nath Das & Anr. vs. Chief District Medical Officer,

Baripada & Anr., reported in (1992) 2 SCC 299 to contend that

the Hon’ble Apex Court has in paragraph No. 34 summarised

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

18/33

the principles governing the cases of compulsory retirement,

paragraph No. 34 whereof is reproduced herein below:-

“34(i). An order of compulsory retirement is not a

punishment. It implies no stigma nor any suggestion of

misbehavior.

(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.”

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

19/33

15.The Ld. Senior Counsel for the petitioner has also relied

upon the following judgments rendered by the Hon’ble Apex

Court:-

(i) The Registrar, High Court of Madras vs. R. Rajiah,

reported in (1988) 3 SCC 211;

(ii) SMT. S.R. Venkataraman vs. Union of India & Anr.,

reported in (1979) 2 SCC 491;

(iii) Baldev Raj Chadha vs. Union of India & Others,

reported in (1980) 4 SCC 321;

(iv) Baldev Raj, Ex-Constable vs. State of Punjab &

Others, reported in 1984 (Supp) SCC 221.

16.Per contra, the learned Additional Solicitor General of

India appearing for the Respondents has submitted, by referring

to RBE No. 130 / 2019 that the petitioner was first required to

exhaust the alternative remedy by way of filing a representation

against the notice / order of compulsory retirement, hence since

the petitioner has not exhausted the said alternative remedy

available to him, the original application filed by the petitioner

before the Ld. CAT was / is not maintainable. Reference has also

been made to Rule 1805 of the Indian Railway Establishment

Code Vol. II to buttress the stand being taken by the

Respondents. It is further submitted that despite the Ld. CAT

having given opportunity to the petitioner, by the impugned

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

20/33

judgment dated 22.2.2024, to file a representation before the

Respondents, the petitioner has directly filed the present writ

petition, challenging the judgment of the Ld. CAT dated

22.2.2024 as also the order of his premature retirement. It is

stated that on perusal of file bearing No. E(O)I/2019/SR-10-

P/04, dealing with premature retirement of Group A officers,

who would be attaining 50 years of age by March, 2020 and

those who have already attained 50 years of age, it is evident

that initially review of 168 officers was carried out by an

Internal committee, headed by Secretary/Railway Board, as

approved by the CRB/ Railway Board, however the said Internal

committee found 150 candidates fit for continuance in service

while it had shortlisted 18 officers including the petitioner for

review by the review committee. The Internal Committee

undertook scrutiny based on performance of the officer as

reflected in the APARs of the entire career, while giving special

attention to the performance during the last 5 years (i.e., upto

APAR year 2017-18), vigilance history, integrity as mentioned

in the APARs, the assessment of PED/Vigilance and integrity

and general reputation as ascertained from the officers he has

worked with/under, during his entire service period. The review

committee had met on 14.11.2019 and vide minutes dt.

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

21/33

19.11.2019 (Annexure R/5), the review committee found three

officers including the petitioner fit to be retired compulsorily in

public interest, in keeping with the Government’s policy of

improving efficiency by dispensing with public servants who are

no longer found useful to the administration. The aforesaid

minutes of the review Committee was approved by the Hon'ble

Minister of Railways on behalf of the President.

17.It is further submitted by the Ld. Additional Solicitor

General of India appearing for the Respondents that the

performance of the petitioner during the immediate past i.e.

from the year 2014 up to 2017 has not been up to the mark,

since there are several adverse remarks, which are reproduced

herein below:-

YearGrading Remarks

2014GoodIn APAR, there are remarks like 'quality of

work is manageable'. In his APAR, 6 of his

attributes (attitude towards work; ability to

guide, inspire and motivate; interpersonal

relations, team work & coordination ability;

safety consciousness; innovation new

technology progression and cos &

expenditure control) have been graded as

‘Average’ and rest of the attributes have been

graded as 'Good'. He never refuted such

remarks. Further, while disposing off his

representation against the said APAR

grading, it has been recorded that CEE/Con.

had counselled Shri Jena on several

occasions over phone. There were also

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

22/33

charges of misbehavior on the part of Shri

Jena and in that connection his explanation

was also called by CEE/Con. on 07.03.2014.

2015GoodIn APAR, there are remarks like 'progress of

work is poor', 'average knowledge and not

following written instructions to attend work

at Bhubaneswar for 02 days in a week and

quality of output is not satisfactory. Further,

04 of his attributes (ability to guide, inspire

and motivate; inter-personal relations,

teamwork and co-ordination ability;

approach customers; and cost & expenditure

control) have been graded as 'Average' and

rest of the attributes have been graded as

'Good'. Verbal warning issued several times

and counselled in Chamber.

2016AverageIn APAR, there are remarks like 'level of

Knowledge is commensurate to the post he is

occupying', 'competency is substituted by

complacency, there is scope of improvement

(in quality of output), he cannot get along

with the colleagues, full of recklessness,

adverse remarks communicated, lacking

decency, he has knowledge but did not put up

his best efforts. In his APAR, 08 of his

attributes (attitude towards work: decision

making ability and judgment; ability to

guide, inspire and motivate; inter-personal

relations, team work and co-safety ordination

ability; consciousness; innovation-new

technology progression; human resource

development; cost and expenditure control)

have been graded as 'Average' and rest of

attributes have been graded as 'Good'.

2017GoodIn APAR, there are remarks like I agree in

general except that cable indent for projects

placed very late and that too for wrong

specifications i.e. PVC instead of XL PE

resulting in delay. Material planning for

actual work involved in NGP-KVP not done

correctly. Power line crossing clearances

sent to CRS were found different for many

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

23/33

locations during joint check by Mr. Jena and

Sr. DEE/G/NGP. Mr. Jena has not filled short

fall column para 3 at page no.3 and filled NA

in para 5', He has been given

remarks-'Average’. He can improve

'Average’. He needs to involve in work

against task relevant knowledge and quality

of output'. In his APAR, 05 of his attributes

(attitude towards work; initiative;

innovation-new technology progression;

environment improvement; & aptitude

towards research and development) have

been graded as 'Average' and rest of the

attributes have been graded as 'Good'. In

general assessment, it has been

mentioned-'He should concentrate in work

with a view to complete task in time and with

good quality'.

Thus, it is submitted that the Review Committee,

considering the performance of the petitioner came to the

conclusion that his continuance in service is no longer useful for

the administration, as such he is fit to be retired compulsorily in

public interest, in keeping with the Government’s policy of

improving efficiency by dispensing with public servants who are

no longer found useful to the administration. It is next submitted

that the petitioner was prematurely retired under Rule 1802(a) of

the Indian Railway Establishment Code, Volume-II, on the basis

of his Annual Performance Appraisal Reports (APARs) for the

years 2013-2014, 2014-2015, 2015-2016 and 2016-2017.

18.It is further submitted by the Ld. Additional Solicitor

General of India appearing for the Respondents that as far as

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

24/33

annual performance assessment report (hereinafter referred to as

the “APAR”) of the petitioner for the period 2013-14 is

concerned, it has been assessed to be good, however the

petitioner had filed a representation dated 23.3.2015 for

upgrading his overall grading from good to outstanding but the

same was rejected, vide letter dated 16.6.2015. As far as the

APAR for the period 2014-15 is concerned, the same was also

assessed to be good and again the petitioner had filed a

representation for upgrading his overall grading from good to

outstanding, however the same was rejected, vide letter dated

8.10.2015. During this period, verbal warning was issued

several times and the petitioner was counselled in the chamber.

As far as the APAR for the period 2015-16 is concerned, the

same had been assessed as “average” against which the

petitioner had filed a representation dated 12.9.2016 for up-

gradation of APAR for the period 2015-16, however the same

was rejected by the accepting authority and average grading was

directed to be retained, which was communicated to the

petitioner, vide letter dated 22.3.2017. As far as the APAR for

the period 2016-17 is concerned, the same had been assessed to

be good, while the petitioner’s overall grading as per APAR for

the period 2017-18 had been assessed as 8.95.

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

25/33

19.Thus, it is submitted by the Ld. Additional Solicitor

General of India appearing for the Respondents that the APAR

dossiers and vigilance history of the petitioner has been

minutely scrutinized by the Review Committee and the minutes

of the Review Committee has been approved by the Hon’ble

Minister of Railways on behalf of the President. It is stated that

the entire service records of the petitioner, with reference to his

performance, have been duly considered and though his

integrity, reflected in the integrity column of his APARs appears

to be satisfactory, however his performance during the

immediate past i.e. from the year 2014 to 2017 has not been up

to the mark, inasmuch as there are several adverse remarks.

Reference has also been made by the Ld. Additional Solicitor

General to the judgment rendered by the Hon’ble Apex Court in

the case of Bakhuntha Nath Das (supra) and it is submitted that

the principles laid down in paragraph no. 34 of the said

judgment rendered by the Hon’ble Apex Court, in fact buttress

the stand of the Respondents since neither the order of

compulsory retirement has been passed in a malafide manner

nor it is based on no evidence nor the same is arbitrary, hence no

interference is required with the same.

20.We have heard the learned counsel for the parties and

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

26/33

perused the materials on record. At the outset, we would

reproduce Clause 6 (a) (b) and (h) of the salient points

consolidated together and appended to RBE No. 130 /2019,

dated 08.08.2019, herein below:-

“6(a). A Railway employee, who has been served with a

notice/order of premature retirement, may submit a

representation within 3 weeks from the date of service or

such notice/order.

(b). On receipt of the representation, the administration

would examine the same to see if it contains any new facts

or any aspect not hitherto taken into consideration.

Examination to be completed within 2 weeks from the

date of receipt. Thereafter, it should be placed before the

appropriate Committee for consideration.

(h). In case the employee gets a stay order from court,

representation is not to be considered by the

administration, nor sent up to the Committee until

disposal of the court case. Thereafter, the cases may be

examined taking into account any material of substantive

nature that may feature in court's judgement.”

21.It would also be relevant to reproduce Rule 1802(a),

1803(a), 1804(a) and 1805(1) of the Indian Railway

Establishment Code, Vol. II, herein below:-

“1802(a). Notwithstanding anything contained in this

Rule, the appointing authority shall if is of the opinion

that it is in the public interest to do so, have the absolute

right to retire any Government servant by giving him

notice of not less man three months in writing or three

months pay and allowances in lieu of such notice.

(i). If he is in Group 'A' or Group 'B' service or post in a

substantive or temporary capacity and had entered

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

27/33

Government service before attaining the age of 35 years,

after he has attained the age of 50 years.

(ii). In any other case, after he has attained the age of 55

years.

(Authority:- Railway Board's letter No. E(P&A)1-

88/JCM/NC-2 dated 6.7.89)

(b)(1).

Any railway servant may by giving notice of not

less than three months in writing to the appropriate

authority, retire from service after he has attained the age

of fifty years if he is in Group 'A' or Group ‘B’ service or

post (and had entered Government service before

attaining the age of 35 years) and in all other cases after

he has attained the age of 55 years.

1803(a). Notwithstanding anything contained in these

rules, or any other rule or order for the time being in

force, the appointing authority shall, if it is of the opinion

that it is in public interest to do so, have the absolute

right to retire a railway servant governed by any pension

Rules after he has completed thirty years service

qualifying for pension after giving a notice in writing in

this behalf to the railway servant at least three months

before the date on which he is required to retire or three

months pay and allowances in lieu of such notice.

1804(a). Notwithstanding anything contained in Clause

(a) of Rule 1802, the appointing authority shall, if it is of

the opinion that it is in public interest to do so, have the

absolute right to retire a railway servant in Group ‘C’

service or post who is not governed by any pension Rules

after he has completed thirty years service by giving him

notice of not less than three months in writing or three

months pay and allowances in lieu of such notice.

1805(1). If on a review of the case referred to in Rule

1802(a), 1803(a) and 1804(a) either on representation

from the railway servant retired prematurely or otherwise,

it is decided to reinstate the railway servant in service the

authority ordering reinstatement may regulate the

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

28/33

intervening period between the date of premature

retirement and the reinstatement as duty or as leave of the

kind due and admissible, including extra-ordinary leave,

or by treating it as depending upon the facts and

circumstances of the case.

22.A bare perusal of Rule 1802(a), 1803(a), 1804(a) and

1805(1) would show that the same provides for premature

retirement of a Government servant if the appointing authority is

of the opinion that it is in the public interest to do so by giving

him notice not less than three months in writing and three

months’ pay and allowances in lieu of such notice, however the

same does not postulate filing of representation against an order

of compulsory retirement. As far as Rule 1805(1) of the Indian

Railway Establishment Code is concerned, the same only

provides that the authority ordering reinstatement of a railway

servant retired prematurely or otherwise may regulate the

intervening period between the date of premature retirement and

the reinstatement as duty or as leave of the kind due and

admissible, including extra-ordinary leave, or by treating it as

depending upon the facts and circumstances of the case,

however the same nowhere mandates filing of a representation

against an order of compulsory retirement by such a

Government servant. Thus, the argument advanced by the Ld.

Additional Solicitor General on this score is not tenable in the

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

29/33

eyes of law, inasmuch as the provision contained in Rule

1805(1) of the Indian Railway Establishment Code nowhere

postulates a statutory remedy of preferring a representation

against notice / order of premature retirement under Rule

1802(a), 1803(a) & 1804(a) of the Indian Railway Establishment

Code, Vol. II. As far as RBE No. 130/2019 is concerned, the

same is first of all an executive instruction, which cannot in any

view of the matter override statutory Rules i.e. Indian Railway

Establishment Code, which in any view of the matter does not

provide for filing of a representation against notice / order of

compulsory retirement, apart from the fact that the expression

used thereunder is “may submit a representation” which makes

the said remedy purely directory and not mandatory. In this

regard, reference be had to a judgment rendered by the Hon’ble

Apex Court in the case of Bachahan Devi & Anr. vs. Nagar

Nigan, Gorakhpur & Anr., reported in (2008) 12 SCC 372,

paragraph no. 21 whereof is reproduced herein below:-

“21. The ultimate rule in construing auxiliary verbs like

“may” and “shall” is to discover the legislative intent;

and the use of the words “may” and “shall” is not

decisive of its discretion or mandates. The use of the

words “may” and “shall” may help the courts in

ascertaining the legislative intent without giving to either

a controlling or a determinating effect. The courts have

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

30/33

further to consider the subject-matter, the purpose of the

provisions, the object intended to be secured by the

statute which is of prime importance, as also the actual

words employed.”

23.We may also gainfully refer to yet another judgment

rendered by the Hon’ble Apex Court in the case of Vidarbha

Industries Power Ltd. v. Axis Bank Ltd., reported in (2022) 8

SCC 352, paragraph nos. 62 to 64 whereof are reproduced

herein below:-

“62. As pointed out by Mr Gupta, legislature has, in its

wisdom, chosen to use the expression “may” in Section

7(5)(a) IBC. When an adjudicating authority (NCLT) is

satisfied that a default has occurred and the application

of a financial creditor is complete and there are no

disciplinary proceedings against proposed resolution

professional, it may by order admit the application.

Legislative intent is construed in accordance with the

language used in the statute.

63. The meaning and intention of Section 7(5)(a) IBC is

to be ascertained from the phraseology of the provision in

the context of the nature and design of the IBC. This

Court would have to consider the effect of the provision

being construed as directory or discretionary.

64. Ordinarily the word “may” is directory. The

expression “may admit” confers discretion to admit. In

contrast, the use of the word “shall” postulates a

mandatory requirement. The use of the word “shall”

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

31/33

raises a presumption that a provision is imperative.

However, it is well settled that the prima facie

presumption about the provision being imperative may be

rebutted by other considerations such as the scope of the

enactment and the consequences flowing from the

construction.

24.In fact, Section 20(1) of the Administrative Tribunal Act,

1985 also reserves discretion with the Ld. CAT in exceptional

circumstances to admit an application where an alternative

remedy exists and in the present case, the Ld. CAT while

exercising the said discretion was pleased to issue notice to the

respondents by an order dated 10.12.2019. Thus, we find that the

Ld. CAT while passing the impugned judgment dt. 22.2.2024

has erred by holding that the petitioner has filed the original

application without exhausting the remedy of representation and

consequently, has wrongly granted liberty to the petitioner to file

representation against the order of his compulsory retirement

within three weeks, instead of adjudicating the matter on merits.

25.The question, therefore, as to whether the order dated

3.12.2019, issued by the Under Secretary, Estt.(s) Railway

Board, Ministry of Railway, Govt. of India, whereby the

petitioner has been retired from service, in exercise of power

conferred by Rule 1802(a) of the Indian Railway Establishment

Code Vol. II, and the notice dt. 06.12.2019, issued by the Deputy

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

32/33

CPO/Gaz., Eastern Central Railway/HJP, wherein it has been

mentioned that the President has decided to relieve the petitioner

from service, are supported by any comparative or distinct

evaluation, whether the analysis of the petitioner’s service

record by the Review Committee has been done objectively and

whether the said orders are sustainable in the eyes of law are

required to be investigated and adjudicated by the Ld. CAT.

Thus, we find it necessary to remit the matter back to the

Tribunal for recording its findings on these facts as the same

would form the foundation of the exercise of power or otherwise

for upholding or setting aside of the said orders retiring the

petitioner prematurely. We, accordingly, partly allow this writ

petition and quash the impugned judgment dated 22.02.2024,

passed by the learned Central Administrative Tribunal, Patna

Bench, Patna in OA/051/01130/2019 and remit the matter back

to the Tribunal to take a decision afresh on merits.

26. The Tribunal shall decide all the issues that have been

referred to in the argument of the respective parties on the basis

of the material available on record or such other material that

may be made available to the Tribunal. In view of the fact that

the pleadings are complete in the original application, filed by

the petitioner before the Ld. CAT i.e. OA/051/01130/2019, we

Patna High Court CWJC No.7910 of 2024 dt.28-04-2026

33/33

request the Ld. CAT to dispose off the said OA/051/01130/2019

within a period of three months from today, considering the fact

that the impugned notice / order of compulsory retirement is of

the year, 2019. In order to facilitate prompt disposal of the said

original application filed by the petitioner, we deem it fit and

proper to direct the parties to appear before the Ld. CAT through

their counsel on 6

th

of May 2026, on which day the said

OA/051/01130/2019 shall be listed before an appropriate Bench.

27.Accordingly, the present writ petition stands partly

allowed to the aforesaid extent.

Ajay/-

(Mohit Kumar Shah, J)

(Praveen Kumar, J)

AFR/NAFR AFR

CAV DATE 13.01.2026

Uploading Date 28.04.2026

Transmission Date NA